The People, Appellant,v.Marlo S. Helms, Respondent.

Brief

N.Y.October 12, 2017

To Be Argued By: David R. Juergens Time Requested: 10 Minutes APL-2016-00168 Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- MARLO S. HELMS, Defendant-Respondent. BRIEF FOR RESPONDENT TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Respondent BY: DAVID R. JUERGENS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4093 Fax: (585) 753-4234 Date Completed: November 17, 2016 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i-iv QUESTION PRESENTED 1 SUMMARY OF ARGUMENT 2 STATEMENT OF FACTS 5 Point I: The Appellate Division correctly held that the People did not satisfy their burden to establish that the essential elements of burglary in Georgia were “strictly equivalent” to the essential elements of burglary in New York. 9 A. The People’s “interpretative-analysis” argument is seriously flawed. 9 B. Burglary in Georgia lacks an essential element (“knowingly”) that is expressly required in New York to establish a prima facie case of burglary. 11 C. The People have the burden to establish, beyond a reasonable doubt, that a foreign crime is strictly equivalent to a New York felony. 13 D. When applied correctly, New York’s strict-equivalency test (comparing essential elements) is a theoretical-impossibility test. 15 E. Under this theoretical-impossibility test, the People cannot use a burglary conviction from Georgia to enhance a defendant’s sentence. 17 F. Many foreign burglary statutes are not strictly equivalent to a New York burglary because, like Georgia, these other foreign statutes lack “knowingly” as an essential element. 19 G. A “defense” is not an “essential element” of a crime. 21 H. The Appellate Division correctly held that “knowingly” is an essential element of burglary in New York but is missing from the statutes defining burglary in Georgia. 26 I. New York’s illegality element (“unlawfully”) is not strictly equivalent to Georgia’s illegality element (“without authority”). 27 J. People v Toliver was incorrectly decided. 29 K. Other arguments raised sua sponte by the dissent are meritless. 34 L. Marlo Helms was properly resentenced as a first felony offender. 44 CONCLUSION 45 i Table of Authorities Federal Cases Alleyne v United States, 133 S Ct 2151 (2013) ...................................................... 22 Apprendi v New Jersey, 530 US 466 (2000) .......................................................... 22 In re Winship, 397 US 358 (1970) ......................................................................... 22 Jackson v Virginia, 443 US 307 (1979) ................................................................. 23 Patterson v New York, 432 US 197 (1977) ............................................................ 25 Staples v United States, 511 US 600 (1994) .......................................................... 22 New York Cases People v Ballinger, 99 AD3d 931 (2d Dept 2012) ................................................ 21 People v Basch, 36 NY2d 154 (1975) ................................................................... 18 People v Cardona, 9 AD3d 337 (1st Dept 2004) .................................................. 20 People v Glover, 57 NY2d 61 (1982) .............................................................. 15-16 People v Gonzalez, 61 NY2d 586 (1984) ........................................................ 13, 14 People v Graves, 76 NY2d 16 (1990) .................................................................... 28 People v Green, 56 NY2d 427 (1982) ................................................................... 15 People v Hall, 158 AD2d 69 (1st Dept 1990) ........................................................ 29 People v Helms, 141 AD3d 1138 (4th Dept 2016) ... 3, 4, 11, 13, 34, 39, 40, 41, 44 People v Hicks, 155 Misc 2d 209 (Sup Ct, NY County 1991) .............................. 19 People v Insogna, 86 AD2d 979 (4th Dept 1982) ................................................. 18 People v Jurgins, 26 NY3d 607 (2015) ........................................................... 13, 14 People v Kohl, 72 NY2d 191 (1988) ............................................................... 22, 24 People v McCargo, 226 AD2d 480 (2d Dept 1996) .............................................. 18 People v Miller, 87 NY2d 211 (1995) ................................................................... 27 People v Muhammad, 17 NY3d 532 (2011) .......................................................... 16 People v Muniz, 74 NY2d 464 (1989) ............................................................. 14, 16 People v Olah, 300 NY 96 (1949) ......................................................................... 14 People v Patterson, 39 NY2d 288 (1976) .............................................................. 22 People v Perkins, 11 NY2d 195 (1962) ................................................................. 26 People v Ramos, 19 NY3d 417 (2012) ..................... 1, 7, 13, 14, 15, 16, 17, 19, 29 ii People v Ranieri, 144 AD2d 1006 (4th Dept 1988) .............................................. 18 People v Ryan, 82 NY2d 497 (1993) ..................................................................... 27 People v Santiago, 28 Misc 3d 1209 (Sup Ct, Bronx County 2010) ..................... 21 People v Santiago, 22 NY3d 900 (2013) ............................................................... 26 People v Schaner, 133 AD2d 582 (1st Dept 1987) ............................................... 20 People v Steele, 26 NY2d 526 (1970) .................................................................... 24 People v Thompson, 140 AD2d 652 (2d Dept 1988) ............................................. 29 People v Toliver, 226 AD2d 255 (1st Dept 1996) ................................... 1, 7, 13, 29 People v Torre, 42 NY2d 1036 (1977) .................................................................. 24 People v Uloth, 201 AD2d 926 (4th Dept 1994) ................................................... 18 People v White, 96 AD2d 541 (2d Dept 1983) ...................................................... 20 People v Yancy, 86 NY2d 239 (1995) ................................................................... 13 People v Yusuf, 19 NY3d 314 (2012) .................................................................... 15 Rotunno v Rochester, 120 AD2d 160 (4th Dept 1986) .......................................... 22 Georgia Cases Brinson v State, 208 Ga App 556 (1993) ......................................................... 17-18 Caldwell v State, 183 Ga App 110 (1987) ....................................................... 17, 23 Dillard v State, 323 Ga App 333 (2013) ................................................................ 37 Drinkard v Walker, 281 Ga 211 (2006) ................................................................. 36 Freelove v State, 229 Ga App 310 (1997) ............................................................. 12 Gray v State, 158 Ga App 582 (1981) ................................................................... 25 Henderson v Hames, 287 Ga 534 (2010) ............................................................... 30 Hiley v State, 245 Ga App 900 (2000) ................................................................... 37 Hutson v State, 220 Ga App 609 (1996) ................................................................ 28 In re J.B.M., 294 Ga App 545 (2008) .................................................................... 28 Jones v State, 263 Ga 835 (1994) .......................................................................... 41 Moore v State, 280 Ga App 894 (2006) ................................................................. 37 Murphy v State, 238 Ga 725 (1977) ....................................................................... 17 Paul v State, 331 Ga App 560 (2015) .............................................................. 24-25 Price v State, 289 Ga 459 (2011) ................................................... 12, 25, 39, 40, 41 iii Price v State, 303 Ga App 589 (2010) ................................................................... 39 Randall v State, 234 Ga App 704 (1998) ............................................................... 25 Redford v State, 309 Ga App 118 (2011) ............................................................... 37 Sanders v State, 293 Ga App 534 (2008) ............................................................... 42 Schwerdtfeger v State, 167 Ga App 19 (1983) ...................................................... 31 State v Ogilvie, 292 Ga 6 (2012) ............................................................................ 31 Stillwell v State, 329 Ga App 108 (2014) .............................................................. 41 Waldrop v State, 300 Ga App 281 (2009) ............................................................. 37 New York Statutes CPL 1.20 (37) ......................................................................................................... 38 CPL 70.10 (1) ......................................................................................................... 23 CPL 70.20 .............................................................................................................. 24 CPL 290.10 (1) ....................................................................................................... 18 CPL 400.15 .............................................................................................................. 6 CPL 400.15 (7) (a) ................................................................................................. 13 CPL 400.21 (7) (a) ................................................................................................. 13 McKinney’s Cons Laws of NY, Book 1, Statutes § 74 ........................................... 3 Penal Law § 10.00 (6) ............................................................................................ 11 Penal Law § 15.00 (2) .................................................................................. 4, 11, 31 Penal Law § 15.00 (4) ............................................................................................ 30 Penal Law § 15.05 (1) ...................................................................... 4, 11, 30, 31, 32 Penal Law § 15.05 (2) ........................................................................ 2, 6, 11, 12, 32 Penal Law § 15.05 (3) ............................................................................................ 32 Penal Law § 15.05 (4) ............................................................................................ 32 Penal Law § 15.10 .................................................................................................. 27 Penal Law § 15.15 (1) ...................................................................................... 11, 27 Penal Law § 15.20 (4) ............................................................................................ 27 Penal Law § 25.00 (1) ............................................................................................ 24 Penal Law § 25.00 (2) ............................................................................................ 24 Penal Law § 70.04 (1) .......................................................................................... 1, 7 Penal Law § 70.04 (1) (b) (i) ................................................................................. 14 iv Penal Law § 70.06 (1) (b) (i) ........................................................................... 13-14 Penal Law § 105.20 ................................................................................................ 16 Penal Law § 115.15 ................................................................................................ 17 Penal Law § 140.00 (2) .......................................................................................... 11 Penal Law § 140.00 (3) .......................................................................................... 11 Penal Law § 140.00 (5) .................................................................................... 11, 28 Penal Law § 140.20 ................................................................................ 2, 20, 26, 27 Penal Law § 140.25 ................................................................................................ 32 Penal Law § 140.25 (2) ............................................................................ 2, 7, 11, 27 Penal Law § 265.03 (3) ............................................................................................ 5 Georgia Statutes Georgia Code Annotated § 16-1-3 (5) ................................................................... 12 Georgia Code Annotated § 16-1-3 (18) ....................................................... 2, 12, 28 Georgia Code Annotated § 16-1-6 ......................................................................... 36 Georgia Code Annotated § 16-1-6 (1) ................................................................... 37 Georgia Code Annotated § 16-2-1 ................................................................... 12, 28 Georgia Code Annotated § 16-2-1 (a) ......................................................... 4, 30, 31 Georgia Code Annotated § 16-2-1 (b) ................................................................... 32 Georgia Code Annotated § 16-2-2 ............................................................... 3, 30, 32 Georgia Code Annotated § 16-3-5 ................................................... 3, 32-33, 38, 41 Georgia Code Annotated § 16-7-1 ..................................................................... 6, 32 Georgia Code Annotated § 16-7-1 (a) ............................... 2, 3, 7, 12, 29-30, 35, 37 Georgia Code Annotated § 16-7-21 (b) (1) ................................................. 2, 35, 37 Georgia Code Annotated § 16-7-21 (c) ................................................................. 28 Georgia Code Annotated § 16-8-2 ......................................................................... 12 Georgia Code Annotated § 17-9-1 (a), (b) ............................................................. 18 Other State Statutes Connecticut General Statutes § 53a-103 (a) .......................................................... 21 1 QUESTION PRESENTED The People tried to establish that Marlo Helms was a “second violent felony offender” (Penal Law § 70.04 [1]), based upon his prior conviction for burglary in the State of Georgia. Question: Did the People satisfy their burden to establish, beyond a reasonable doubt, that the essential elements of burglary in Georgia are strictly equivalent to the essential elements of burglary in New York? Monroe County Court: Yes. Citing People v Toliver (226 AD2d 255 [1st Dept 1996]), the County Court sentenced Mr. Helms as a “second violent felony offender.” Appellate Division: No. Relying upon case law from this Court, including People v Ramos (19 NY3d 417 [2012]), the Appellate Division held that the Georgia statutes defining the crime of burglary omit an essential element (to wit, “knowingly”) that is expressly required by the New York statutes defining burglary. 2 SUMMARY OF ARGUMENT In New York, to establish a legally-sufficient, prima facie case of burglary, the People must plead and prove that the alleged perpetrator knowingly entered or remained unlawfully in a building with intent to commit a crime therein (see Penal Law § 140.20). Certain aggravating factors will elevate the degree of the felony (for example, where the building is a “dwelling”) (see Penal Law § 140.25 [2]). In Georgia, however, the State is not required to plead and prove, as part of its prima facie case of burglary, that the person knowingly entered or remained in a building or that such person was consciously aware that the entry or remaining was illegal (“without authority”) (see Georgia Code Annotated [“Ga Code Ann”] § 16- 1-3 [18]). This is true because, on its face, the Georgia burglary statute omits the word “knowingly” (see Ga Code Ann former § 16-7-1 [a]). The People try to overcome this undisputed statutory omission by claiming, based upon other Georgia statutes and, supposedly, “Georgia case law,” that a “knowingly” element, strictly equivalent to New York’s element (see Penal Law § 15.05 [2]). must be read into the Georgia burglary statute. But Georgia’s legislature has defined many Georgia crimes, including criminal trespass (Ga Code Ann § 16-7-21 [b] [1]), to include an express statutory requirement that the State plead and prove, as part of its prima facie case, that the person acted “knowingly” with respect to certain conduct or circumstances 3 described by the criminal statute. Based upon this undisputed fact (“that the Georgia Legislature has included a knowing requirement in other crimes”) and applying a common rule of statutory construction (see McKinney’s Cons Laws of NY, Book 1, Statutes § 74), the Appellate Division adopted a reasonable view of the statutory omission: “the Georgia Legislature’s failure to include [a “knowingly”] requirement in [its burglary] statute requires a finding that such element is not part of the crime” (People v Helms, 141 AD3d 1138, 1139-1140 [4th Dept 2016]). On their appeal, the People ask this Court to reverse the Appellate Division but they provide no legitimate rationale to support this request. Contrary to the picture painted by the People and the dissenting Justice, the Appellate Division’s majority did not refuse to consider any Georgia statute or any Georgia case law. Instead, the majority simply disagreed with conclusions reached by the People and the dissenting Justice about the impact of other Georgia statutes and case law on the “essential elements” of burglary in Georgia. Contrary to the People’s argument, reading Georgia’s burglary statute (Ga Code Ann former § 16-7-1 [a]) “in conjunction with” Georgia’s misfortune-or- accident statute (Ga Code Ann § 16-2-2) and Georgia’s mistake-of-fact statute (Ga Code Ann § 16-3-5) does not import a “knowingly” element into Georgia’s definition of burglary. The People confuse the “essential elements” of burglary 4 (defined by the relevant burglary statutes) with potential “defenses” to that crime (defined by the other statutes). Contrary to another argument advanced by the People, Georgia’s general definition of a “crime” (Ga Code Ann § 16-2-1 [a]) does not import a “knowingly” mens rea element to Georgia’s burglary statute. Georgia’s used of the word “intention” is not “strictly equivalent” or even remotely similar to New York’s use of “intentionally” (see Penal Law § 15.05 [1]). Instead, the word “intention” as used in Georgia’s “crime” definition statute is analogous to New York’s definition of “voluntary act” (see Penal Law § 15.00 [2]). Contrary to a third argument, Georgia’s law on lesser included offenses cannot be used as a means to read “knowingly” into Georgia’s burglary statute. The People have not established that Georgia and New York have the same rules on lesser included offenses. Moreover, none of the Georgia cases cited by the People support their new claim that the lesser-included status of criminal trespass causes “knowingly” to become an essential element of burglary in Georgia. Finally, and most importantly, neither the People nor the dissenting Justice has presented “any Georgia case law specifically reading [New York’s] ‘knowingly’ requirement into the Georgia burglary statute” (Helms, 141 AD3d at 1140). 5 STATEMENT OF FACTS On June 10, 2012, Marlo Helms was arrested and charged with criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) (Record on appeal [“R”] at 13, 16). The People’s plea offer was attempted possession (R 68). By mutual agreement, the County Court’s sentence promise depended upon the proper status of a prior Georgia conviction for burglary. Three different sentences were possible. If the Georgia conviction was strictly equivalent to: • A “violent felony offense” in New York (second-degree burglary), then the sentence would be 5 years in prison and 5 years of post-release supervision; • A non-violent felony in New York (third-degree burglary), then the sentence would be 3 years in prison and 3 years of post-release supervision; or • No felony in New York, then the prison sentence would be capped at 2 years with post-release supervision ranging from 1 ½ to 3 years (R 68-69, 74-75). At the time of the plea, the parties agreed that the People would obtain and submit documents from the State of Georgia regarding Mr. Helms’s status as a potential predicate felon. Mr. Helms agreed to admit the conviction and to forgo his right to a hearing. The sole contested issue was whether his Georgia conviction for burglary was strictly equivalent to any felony in New York (R 70-71). Based upon these representations, Mr. Helms pleaded guilty to attempted criminal possession of a weapon in the second degree (R 72-81). 6 Before sentencing, the People (R 21-50) and the defendant (R 51-57) submitted paperwork in support their opposing positions on the status of the Georgia conviction (R 83-84, 91-92). Defense counsel argued that the Georgia conviction could not serve as a predicate felony conviction in New York because the Georgia statutes that define burglary omit an essential element (to wit, “knowingly”) that is expressly required in New York. Counsel argued that all New York burglary statutes require that the perpetrator’s illegal entry into a building must be done “knowingly.” In other words, in every New York prosecution for burglary, the People must plead and prove that the actor was aware of the illegality of his entry into the building. Because the statutes defining burglary in Georgia lack this essential element (“knowingly”) (Penal Law § 15.05 [2]), a defendant, in theory, could violate the Georgia statute without also violating any New York burglary statute (R 51-52). At sentencing, defense counsel reiterated that Mr. Helms had previously agreed to admit the prior Georgia conviction and that he was only contesting whether that conviction would require the court to sentence him as a predicate felon (R 92). Thereafter, Mr. Helms admitted having the prior Georgia conviction and raised no constitutional challenges (R 92-93). The “second violent felony offender” information (CPL 400.15) alleged that Mr. Helms was previously convicted of “Burglary (residential) 16-7-1 Georgia Code” (R 14). 7 The Monroe County Court’s Decision The County Court found Mr. Helms to be a “second violent felony offender” (Penal Law § 70.04 [1]), expressly relying on People v Toliver (226 AD2d 255 [1st Dept 1996]) as the exclusive basis for its decision (R 93). Thereafter, the court imposed a determinate sentence of 5 years in prison and 5 years of post-release supervision (R 93-94). The Appellate Division’s Decision On appeal, the Fourth Department rejected the People’s argument that People v Toliver was controlling and agreed with Mr. Helms that the Georgia crime of burglary lacks an essential element that is required by the equivalent New York statute (R 4). More specifically, after setting forth the elements of burglary in Georgia (Ga Code Ann former § 16-7-1 [a]) and the elements of burglary in New York (Penal Law § 140.25 [2]), the Fourth Department concluded: “Thus, on its face, the Georgia statute is lacking an essential element – knowledge that the entry or the decision to remain is unlawful. Because New York law requires proof of an element that Georgia law does not, defendant’s Georgia conviction cannot serve as a predicate (see generally People v Ramos, 19 NY3d 417, 420)” (R 4). The Appellate Division modified the judgment by vacating the sentence and remitting the matter for resentencing (R 5). Because Mr. Helms was continuously incarcerated from his arrest date (June 10, 2012) until his resentencing date (July 18, 8 2016) (more than four years), the County Court resentenced him to a definite sentence of incarceration (one year in jail) (R 12). 9 Point I: The Appellate Division correctly held that the People did not satisfy their burden to establish that the essential elements of burglary in Georgia were “strictly equivalent” to the essential elements of burglary in New York. A. The People’s “interpretative-analysis” argument is seriously flawed. On their appeal, the People have avoided a straightforward, statute-to-statute comparison of the “essential elements” for burglary (as created by the relevant, crime-defining statutes in Georgia and New York). Instead, the People have adopted a strawman argument that they describe as an “interpretative analysis.” Apparently, under the People’s version of this process, comparing the “words” of two criminal statutes is not the same as comparing the “elements” (Appellant’s Brief at 10-11). But the People have built their “interpretative-analysis” argument upon a false foundation. They make assumptions about the Appellate Division’s holding that are plainly wrong. The People must do so, apparently, to avoid facing a crucial distinction that ultimately destroys their substantive argument. Simply put, there is a fundamental difference between “essential elements” of a crime (those necessary facts that the government must plead and prove in every criminal case) and potential “defenses” to such crime (those issues that a defendant may raise based upon the evidence presented in an individual case). Contrary to the arguments made by the People and the Appellate Division’s dissenting Justice, “defenses” do not import any essential elements into the State’s prima facie case. 10 In other words, a successful defense may result in a better verdict for a particular defendant but it will not change the State’s initial pleading-and-proof requirements for the specific crime at issue. However, ignoring the crucial difference between essential elements of a crime and defenses to that crime, the People have taken what should be an ordinary exercise in statutory construction and have transformed it into something more complicated and confusing. As the People cryptically explain: “Therefore, the question in this appeal is whether variation in specific words contained in a statute constitute a technical distinction, or whether a sentencing court may consider interpretative analysis of the foreign state’s statutes and case law” (Appellant’s Brief at 6-7). But the People’s interpretative-analysis argument contains two fatal flaws. First, the People erroneously assume that the Appellate Division’s holding somehow prohibits a trial court from looking to relevant statutes and case law of a foreign jurisdiction when determining the essential elements of a foreign crime. It does not. Nothing in the majority opinion suggests that the Appellate Division was unwilling to review any relevant statute or case law from the State of Georgia.1 Instead, the majority simply disagreed with the statutory interpretations proffered by the People and the dissent. 1 On his own appeal to the Appellate Division, Marlo Helms cited ten Georgia cases for the Appellate Division to consider. The People cited none (see Table of Authorities in the Briefs for Appellant and Respondent). In fact, the People submitted no Georgia case law to the trial court (R 21-50). 11 Second, as specifically noted by the Appellate Division’s majority, neither the People nor the dissenting Justice, have identified any relevant Georgia case law to support their conclusion that a “knowingly” element must be read into Georgia’s burglary statute (Helms, 141 AD3d at 1140). B. Burglary in Georgia lacks an essential element (“knowingly”) that is expressly required in New York to establish a prima facie case of burglary. In New York: “A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein and when . . . [t]he building is a dwelling” (Penal Law § 140.25 [2]). The five essential elements of second-degree burglary in New York are: • “Knowingly” (Penal Law § 15.05 [2]); • “Enters or remains” (not specifically defined; but see Penal Law § 15.00 [2] [“Voluntary act”]); • “Unlawfully” (Penal Law § 140.00 [5]); • In a “Building” (Penal Law § 140.00 [2]) that qualifies as a “Dwelling” (Penal Law § 140.00 [3]); • “With intent to commit a crime therein” (see Penal Law § 15.05 [1] [“Intentionally”]; Penal Law § 15.15 [1] [“a specific kind of intent”]; Penal Law § 10.00 [6] [“Crime”]). In Georgia: “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or 12 remains within the dwelling house of another” (Ga Code Ann former § 16-7-1 [a] [Georgia statute in effect on September 27, 1999]). The four essential elements of burglary in Georgia are: • “Without authority” (Ga Code Ann § 16-1-3 (18); and • “With the intent to commit a felony or theft therein” (Ga Code Ann § 16- 1-3 [5] [“Felony”]; compare Ga Code Ann § 16-8-2 [“Theft by taking”]); • “Enters or remains” (not specifically defined; but see Ga Code Ann § 16- 2-1 [where a “crime” is defined as an “act” and “intention”]); • “Within the dwelling house of another” (defined by Georgia case law) (compare Freelove v State, 229 Ga App 310, 311 [1997] [listing three elements only because the third and fourth elements are combined into one: to wit, “entering the building of another”]; Price v State, 289 Ga 459, 460 [2011] [same: “enters or remains within the dwelling house of another”]). On its face, the Georgia burglary statute omits an essential element contained in the New York statute – that the person knowingly entered or remained unlawfully (New York’s illegality element). Like New York, Georgia requires an illegal entry-or-remaining (to wit, “without authority”). But, unlike New York, Georgia does not require the State to plead and prove, as part of its prima facie case, a second mens rea element: that defendant was “aware” of the illegality (see Penal Law § 15.05 [2] [“knowingly” is defined as a conscious awareness]). 13 Mr. Helms specifically argued that this omission prohibited the People from using his prior Georgia conviction as a predicate felony for enhanced-sentencing purposes (R 51-52). But the County Court, citing People v Toliver (226 AD2d 255 [1st Dept 1996]), erroneously rejected this argument (R 93). On Mr. Helms’ direct appeal, however, the Appellate Division, rejecting Toliver and applying People v Ramos (19 NY3d 417 [2012]), corrected this error (see People v Helms, 141 AD3d 1138, 1138-1139 [4th Dept 2016]). Mr. Helms has been properly resentenced as a first felony offender (R 12). C. The People have the burden to establish, beyond a reasonable doubt, that a foreign crime is strictly equivalent to a New York felony. Before the People can require a trial court to sentence a defendant as a predicate felon, the People must prove, beyond a reasonable doubt, that the defendant has been subjected to “a predicate felony conviction” (CPL 400.21 [7] [a]) or “a predicate violent felony conviction” (CPL 400.15 [7] [a]; see People v Gonzalez, 61 NY2d 586, 592 [1984] [“The responsibility rests upon the prosecution to satisfy [the statutory requirements for enhanced sentencing] if it seeks additional punishment”]; People v Yancy, 86 NY2d 239, 247 [1995]; People v Jurgins, 26 NY3d 607, 613 [2015]). Where the People seek enhanced sentencing based upon a foreign conviction, the People must show that a sentence in excess of one year was authorized in the foreign jurisdiction and “is authorized in this state” (Penal Law § 14 70.06 [1] [b] [i] [“second felony offender”]; Penal Law § 70.04 [1] [b] [i] [“second violent felony offender”]). The statutory phrase “is authorized in this state” requires the People to show that the foreign crime includes “all the essential elements of a New York felony” (People v Muniz, 74 NY2d 464, 467-468 [1989]; People v Ramos, 19 NY3d 417, 419 [2012]). To identify the specific foreign crime for which a defendant was convicted, the court must “consider the statute which created and defined it and upon which the indictment was based” (People v Olah, 300 NY 96, 98 [1949]). In other words, the foreign “crime” must “be measured and limited by the statute which defines it” (Olah, 300 NY at 99; People v Gonzalez, 61 NY2d 586, 589 [1984] [“To determine whether a foreign crime is equivalent to a New York felony the court must examine the elements of the foreign statute and compare them to an analogous Penal Law felony”]). In general, the court’s inquiry will be “limited to a comparison of the crimes’ elements as they are respectively defined in the foreign and New York penal statutes” (People v Muniz, 74 NY2d 464, 467-468 [1989]; People v Jurgins, 26 NY3d at 613). “[T]he allegations of the accusatory instrument may be referred to when necessary to clarify the statutory charge, to limit or narrow the basis for the conviction, but they may not be used to enlarge or expand the crime charged” (Gonzalez, 61 NY2d at 591; Muniz, 74 NY2d at 468 [accusatory instruments 15 “frequently contain non-essential recitals . . . [that] are not necessary to the determination of guilt”]). This statutory comparison of “essential elements” constitutes a test of “strict equivalency” where “technical distinctions between New York and foreign penal statutes can preclude use of a prior felony as a predicate for enhanced sentencing” (People v Ramos, 19 NY3d 417, 419 [2012], quoting Matter of North v Board of Examiners of Sex Offenders of State of NY, 8 NY3d 745, 751 [2007]). D. When applied correctly, New York’s strict-equivalency test (comparing essential elements) is a theoretical-impossibility test. “When a statute-to-statute comparison reveals differences in the elements such that it is possible to violate the foreign statute without engaging in conduct that is a felony in New York, the foreign statute may not serve as a predicate” (People v Yusuf, 19 NY3d 314, 321 [2012] [emphasis added]). In other words, if a person could, in theory, violate Georgia’s burglary statute without violating any New York felony statute, then the statutory crimes are not strictly equivalent. Stated another way, for the foreign crime to qualify, it must be impossible to commit a Georgia burglary without also committing a New York burglary. This theoretical-impossibility test for determining whether statutory crimes are strictly equivalent resembles (1) the New York test for determining whether one crime is a lesser-included offense of another crime (People v Green, 56 NY2d 427 [1982]; People v Glover, 57 NY2d 61, 64 [1982] [it must be “theoretically 16 impossible to commit the greater crime without at the same time committing the lesser”]) and (2) the New York test for determining whether guilty-and-not-guilty verdicts are legally repugnant (People v Muhammud, 17 NY3d 532, 539-540 [2011] [“a verdict is repugnant only if it is legally impossible – under all conceivable circumstances – for the jury to have convicted the defendant on one count but not the other”]). This theoretical-impossibility test will invalidate the use of foreign convictions for enhanced-sentencing purposes where the foreign statute has an essential element that is “broader” than the corresponding New York element (see e.g. People v Muniz, 74 NY2d 464 [1989] [for burglary, the intent to commit an “offense” is broader than an intent to commit a “crime”]) or where the foreign statute is missing an essential element contained in the corresponding New York statute (see e.g. People v Ramos, 19 NY3d 417 [2012]). In Ramos, this Court invalidated the People’s use of a federal drug conspiracy conviction as a predicate felony for enhanced-sentencing purposes because the federal statute did not require the commission of an overt act. Under New York law, “a person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy” (Penal Law § 105.20 [emphasis added]). “Because 17 New York law requires proof of an element that federal law does not, defendant’s federal conspiracy conviction cannot serve as a predicate” (19 NY3d at 420). In Ramos, this Court expressly rejected the People’s attempt to draw an analogy between the overt-act requirement for a New York conspiracy and evidentiary requirements such as corroboration (see Penal Law §§ 115.15; 130.16; 255.30) (Ramos, 19 NY3d at 420-421 [“The overt act is an element of the crime. It is a fact whose existence the People must plead and prove to obtain a conviction. It differs from corroboration, which is a kind of evidence required to prove a fact”] [emphasis added]). E. Under this “theoretical-impossibility” test, the People cannot use a burglary conviction from Georgia to enhance a defendant’s sentence. In theory, a defendant could be convicted of burglary in Georgia without any proof that the defendant was aware that his entry was illegal. This is so because, in Georgia, establishing such awareness is not part of the State’s prima facie case in a burglary prosecution (see e.g. Caldwell v State, 183 Ga App 110, 111 [1987] [“The essential elements of burglary are unauthorized entry and intent to commit a theft or other felony”]; Murphy v State, 238 Ga 725, 729 [1977] [proving that the dwelling was entered without authority of a lawful occupant (a child) “was sufficient to allow the case to go to the jury for decision”; the legal “owner” of the dwelling (a parent) need not testify]; Brinson v State, 208 Ga App 556, 558 [1993] 18 [“In view of the direct testimony that appellant had no authority to enter the motel room, the trial court correctly denied his motion for directed verdict of acquittal”]). In New York, unlike burglary prosecutions in Georgia, the People must plead and prove that the defendant acted “knowingly” to establish any degree of trespass or burglary (see generally People v Basch, 36 NY2d 154, 159 [1975] [In every trespass prosecution, the People must prove “that such person ‘knowingly’ entered the premises without license or privilege and, therefore, a person who enters upon premises accidentally, or who honestly believes that he is licensed or privileged to enter, is not guilty of any degree of criminal trespass”]; see also People v McCargo, 226 AD2d 480, 481 [2d Dept 1996] [burglary conviction vacated]; People v Uloth, 201 AD2d 926 [4th Dept 1994] [burglary conviction vacated]; People v Ranieri, 144 AD2d 1006, 1008 [4th Dept 1988] [legally insufficient evidence to support trespass conviction]; People v Insogna, 86 AD2d 979 [4th Dept 1982] [burglary conviction vacated]). Because the prima-facie-case requirements are different, in theory, identical proof of an alleged “burglary” could result in a conviction in Georgia but require a trial order of dismissal (“TOD”) in New York (see CPL 290.10 [1]). In other words, the State of Georgia can survive a motion for a directed verdict of acquittal (Georgia’s version of New York’s TOD motion) (Ga Code Ann § 17-9-1 [a], [b]) by presenting some evidence that the defendant’s entry or remaining was illegal 19 without presenting any evidence to establish that the defendant was consciously aware of such illegality. F. Many foreign burglary statutes are not strictly equivalent to a New York burglary because, like Georgia, these other foreign statutes lack “knowingly” as an essential element. Many New York courts have invalidated the use of foreign burglary convictions for predicate-felony-offender sentencing where the foreign statutes omit “knowingly” as an essential element of the foreign crime. Georgia The analysis used in People v Hicks (155 Misc2d 209 [Sup Ct, NY County 1991]) closely tracked the prima-facie-case analysis used by this Court in People v Ramos (19 NY3d 417 [2012]). In Hicks, after comparing the elements of the New York and Georgia burglary statutes, the court concluded that there was “a lack of equivalency” because the Georgia statute omitted the essential element (“knowingly”) (155 Misc2d at 211-212). The Hicks court rejected the People’s attempt to rely upon Georgia’s affirmative, mistake-of-fact defense as a substitute for the missing essential element. The court explained that, under New York law, the “knowingly” element is part of the People’s prima facie case: “it is the People’s burden in each case in the first instance to prove that defendant knowingly entered in a building without license or privilege” (Hicks, 155 Misc2d at 213). 20 Pennsylvania “However, as conceded by the People, there is no element in the Pennsylvania statute comparable to the element in the analogous New York statute that an intruder ‘knowingly’ enter or remain unlawfully in the premises (Penal Law § 140.20). The absence of this scienter element from the Pennsylvania burglary statute renders improper the use of these Pennsylvania burglary convictions as the basis of defendant’s predicate felony adjudication” (People v Schaner, 133 AD2d 582 [1st Dept 1987]; see also People v Flores, __ AD3d __, 2016 NY Slip Op 06723 [2d Dept 10/12/2016]). Virginia “[T]he Virginia burglary statutes contain no requirement that a defendant knowingly enter or remain unlawfully in a building. In contrast, in New York, a culpable mental state is a key element of the felony of burglary” (People v White, 96 AD2d 541, 541-542 [2d Dept 1983] [emphasis in original]). Rhode Island “Thus, unlike New York law, Rhode Island law, on its face, does not require proof that the defendant knew his entry was unlawful or without permission and, on its face, a conviction of burglary in Rhode Island does not constitute a predicate violent felony conviction in New York” (People v Cardona, 9 AD3d 337, 339 [1st Dept 2004]). 21 Connecticut The People conceded that the defendant’s Connecticut conviction for burglary (Conn Gen Stat § 53a-103) would not constitute a felony in New York (People v Ballinger, 99 AD3d 931, 932 [2d Dept 2012] [Conn Gen Stat § 53a-103 (a) states that: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein”]; see also People v Stridiron, 2001 NY Slip Op 40050 (unpublished opinion) [Sup Ct, Bronx County 2001] [Connecticut burglary statute omits “knowingly”]). Michigan The Michigan home-invasion statute omitted the element of “knowingly” and therefore did not qualify as a predicate felony in New York (People v Santiago, 28 Misc3d 1209 (A), 2010 NY Slip Op 51227 (U) [Sup Ct, Bronx County 2010]). G. A “defense” is not an “essential element” of a crime. On this appeal, the primary substantive dispute centers on the People’s unexplained refusal to address the crucial difference between “defenses” (that, depending upon the trial evidence, may be raised by a defendant in an individual case) and “essential elements” of a crime (that must be alleged and proven by the State in every case). 22 The constitutional power to define crimes rests solely with the legislature (Staples v United States, 511 US 600, 604 [1994]; Rotunno v Rochester, 120 AD2d 160, 163 [4th Dept 1986]). The legislature must enact statutes that set forth the “essential elements” of the crime: the minimum requirements that the government must always plead and prove in order to establish a prima facie case. “[I]n a criminal prosecution due process imposes on the prosecution the unalterable burden of proving beyond a reasonable doubt every element of the crime charged” (People v Kohl, 72 NY2d 191, 198 [1988]; In re Winship, 397 US 358, 364 [1970]; People v Patterson, 39 NY2d 288 [1976] affd 432 US 197 [1977]). The United States Supreme Court has articulated a constitutional definition for what constitutes an “element” of a crime. This definition illustrates the constitutional limits, imposed by Apprendi v New Jersey (530 US 466 [2000]), on the power of legislatures to define crimes. In a nutshell, legislatures cannot take away a jury’s power to find the penalty-increasing facts (or “elements”) of a crime: “Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt” (Alleyne v United States, __ US __, 133 S Ct 2151, 2155 [2013]). Thus, it is the penalty-increasing facts that actually define the crime and distinguish “elements” from non-elements (such as “defenses”). But this Court has long recognized the distinction between crime-defining statutes and defenses (see e.g. People v Kohl, 72 NY2d 191, 198 [1988] [“New 23 York’s affirmative defense of mental disease or defect . . . places the burden of proof by a preponderance of evidence on defendants . . . [but] placing this burden on the defendant does not relieve or transform the People’s primary and constant burden of proving, beyond a reasonable doubt, all the elements of the crimes charged]). A “defense” may provide a specific defendant with a possible means of escaping criminal responsibility depending upon the evidence produced in an individual case. The fact-finder (typically a jury) may acquit the defendant based upon a successful defense. But this fact-finding process is fundamentally different from a trial court’s legal decision about whether to dismiss criminal charges because the State has not produced legally sufficient evidence to establish a prima facie case. Before granting a TOD motion (in New York) or a motion for a directed verdict of acquittal (in Georgia), the trial court must view the evidence in the light most favorable to the government and determine whether “any rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt” (Jackson v Virginia, 443 US 307, 319 [1979]; see e.g. Caldwell v State, 183 Ga App 110, 111-112 [1987] [evidence of “entry” was insufficient to sustain defendant’s burglary conviction]; see also CPL 70.10 [1] [defining “legally sufficient evidence”]). 24 In contrast, a jury can accept or reject, in whole or in part, whatever proof is submitted. Before convicting a defendant, however, the jury must be convinced, beyond a reasonable doubt, that the government (1) has proven all essential elements of the crime and (2) has disproven any “traditional” defenses raised by the trial evidence (see People v Kohl, 72 NY2d 191, 195 [1988]; Penal Law § 25.00 [1] [burden of proof for a “defense”]; CPL 70.20 [“Standards of proof for conviction” by verdict]). An “affirmative defense” (where the defendant must establish such defense by a preponderance of the evidence) (Penal Law § 25.00 [2]), depending upon the proof in an individual case, may provide a defendant with a third pathway to an acquittal. A second difference between “essential elements” and “defenses” (whether “traditional” or “affirmative”) is the trial court’s review standard. While the evidence supporting the legal sufficiency of all essential elements of a crime must be viewed in the light most favorable to the government, the evidence supporting a defendant’s entitlement to a jury instruction on a defense must be viewed in the light most favorable to the defendant (see People v Torre, 42 NY2d 1036, 1036- 1037 [1977]; People v Steele, 26 NY2d 526, 528-529 [1970]; contrast People v Watts, 57 NY2d 299, 301 (1982] [“when no reasonable view of the evidence would support a finding of the tendered defense, the court is under no obligation to submit the question to the jury”]; see also Paul v State, 331 Ga App 560, 563-564 [2015] 25 [a jury instruction on mistake-of-fact defense was properly denied]; Randall v State, 234 Ga App 704, 705-706 [1998] [same]; but see Price v State, 289 Ga 459, 459-462 [2011] [a jury instruction on the affirmative defense of “mistake of fact” should have been given]). A third difference between “essential elements” and “defenses” is the appropriate remedy on appeal. A failure to establish an essential element results in a dismissal or a reduction of the charge. A failure to instruct the jury on a relevant defense results in a new trial (see e.g. Gray v State, 158 Ga App 582 [1981] [the evidence of burglary was legally sufficient but a new trial was granted based upon the trial court’s failure to give a jury instruction on defendant’s mistake-of-fact defense]). In sum, while legislatures can create defenses that may provide a defendant with a pathway to acquittal, these defenses are not essential elements of the crime (see generally Patterson v New York, 432 US 197 [1977]). Essential elements are the penalty-increasing facts that define the crime. On the other hand, defenses increase nothing. Ultimately, whether a particular defense can be raised in a particular case will depend upon the trial evidence, not the statutory definition of the crime On at least two occasions, this Court has expressly recognized a distinction between essential elements and defenses in the enhanced-sentencing context. 26 In People v Perkins (11 NY2d 195, 197-198 [1962]), this Court rejected the defendant’s argument that there was a material difference between common law manslaughter in North Carolina and statutory homicide in New York based upon an apparent difference in the availability of a justification defense - “acting in defense of another” (where, under certain circumstances, the defense would be available in New York, but not in North Carolina). In People v Santiago (22 NY3d 900 [2013]), this Court considered, as a relevant component of the strict-equivalency test, whether, in theory, a New York court could exercise trial jurisdiction over the foreign crime. In particular, this Court expressly distinguished the categorical nature of New York’s infancy statute – which precludes any criminal prosecution of an infant defendant in New York - “from affirmative defenses such as insanity, duress or self-defense in which the defendant must make a showing” to raise the defense (Santiago, 22 NY3d at 904 [emphasis added]). H. The Appellate Division correctly held that “knowingly” is an essential element of burglary in New York but is missing from the statutes defining burglary in Georgia. In New York, burglary has two culpable mental state elements. A defendant must “knowingly” enter or remain unlawfully in a building and must do so “with intent to commit a crime therein” (Penal Law § 140.20). Given how the statute has been drafted, the “knowingly” element applies to both the “enter-or-remain” 27 element and the “unlawfulness” element (see generally Penal Law § 15.15 [1]; compare People v Ryan, 82 NY2d 497 [1993] [knowledge of the aggregate weight of a controlled substance]; superseded by Penal Law § 15.20 [4]). But the “knowingly” element does not necessarily apply to other elements of burglary in New York. For example, if the building entered is also a “dwelling,” then the crime increases from a class D felony (Penal Law § 140.20) to a class C felony (Penal Law § 140.25 [2]). Based upon how the burglary statute is drafted, however, the People do not need to establish that the defendant knew that the building was a dwelling (Penal Law § 15.15 [1]). Instead, the building’s status as a “dwelling” is an aggravating factor and a strict liability element (see generally People v Miller, 87 NY2d 211 [1995] [discussing aggravating factors and strict liability elements in the context of the robbery statutes]; see also Penal Law § 15.10 [“Requirements for criminal liability in general and for offenses of strict liability and mental culpability”]). I. New York’s illegality element (“unlawfully”) is not strictly equivalent to Georgia’s illegality element (“without authority”). Because New York’s “knowingly” element directly applies to New York’s illegality element, any material difference between New York’s definition of illegality (“unlawfully”) and Georgia’s definition (“without authority”) will fail the strict-equivalency test. 28 In New York, a person “enters or remains unlawfully” in or upon premises when he is not licensed or privileged to do so (Penal Law § 140.00 [5]). One is “licensed or privileged” to enter upon premises when he has “obtained the consent of the owner or another whose relationship to the premises gives him authority to issue such consent” (People v Graves, 76 NY2d 16, 20 [1990]). In Georgia, however, entering or remaining “without authority” means “without legal right or privilege or without permission of a person legally entitled to withhold the right” (Ga Code Ann § 16-1-3 [18] [emphasis added]). These two definitions for the illegality element are not strictly equivalent. In 1999, Mr. Helms committed the Georgia crime (R 26 [count 8]). In 1997, Georgia law was amended to overrule a prior case (Hutson v State, 220 Ga App 609 [1996] [holding that a minor could grant permission for someone to enter a home]). The amended statute (Ga Code Ann § 16-7-21 [c]) expressly prohibits a “lawful entry” based upon “permission to enter or invitation to enter given by a minor . . . if [the minor’s] parent or guardian has previously given notice that such entry is forbidden or notice to depart” (see In re J.B.M., 294 Ga. App 545 [2008]). Thus, in theory, a New York defendant could believe he was lawfully entering a building where the child of an owner granted permission to enter (even though the owner may have denied permission to enter on a prior occasion). In Georgia, however, under the amended statute, the child’s permission would be 29 legally invalid and the defendant’s entry, as a prima facie matter, would be “without authority.” This is just another example of how, in theory, the same evidence could produce a legally sufficient case of burglary in Georgia but not in New York. J. People v Toliver was incorrectly decided. The County Court erred by adopting People v Toliver, 226 AD2d 255 [1st Dept 1996]) as its sole basis for sentencing Mr. Helms as a predicate felony offender. The Toliver court employed a flawed analysis (confusing affirmative defenses with essential elements) and cited two unconvincing cases (Thompson and Hall). In People v Thompson (140 AD2d 652, 654 [2d Dept 1988]), the court merely concluded that “[t]he elements of the Georgia crime of burglary . . . are comparable to the elements of the felony of burglary in the third degree in New York.” But the Thompson court never discussed the Georgia statute’s omission of the “knowingly” element and expressly used an incorrect standard when it found that the statutory elements were “comparable” (rather than “strictly equivalent”) (contrast People v Ramos, 19 NY3d 417, 418 [2012]). In People v Hall (158 AD2d 69, 81 [1st Dept 1990]), in a single paragraph and without any express comparison of the statutory elements, the court rejected “defendant’s challenge to the scope of section 16-7-1 (a) of the Georgia Code 30 Annotated” (burglary), concluding that the defendant was “simply incorrect that the Georgia burglary statute lacks the scienter element present in the corresponding New York law (see, Ga Code Annot § 16-2-1).” But the specific Georgia statute cited in Hall to supply an ambiguous “scienter element” to Georgia’s burglary statute was merely Georgia’s generic definition of a “crime” (“a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence”) (Ga Code Ann § 16-2-1 [a] [emphasis added]). As interpreted by Georgia case law, however, the word “intention” (found in both Ga Code Ann § 16-2-1 [a] [defining “crime”] and Ga Code Ann § 16-2-2 [defining a misfortune-or-accident defense]) is not equivalent to New York’s mens rea element of “intentionally” (see Penal Law § 15.05 [1]). Instead, Georgia’s generic definition of a “crime” parallels New York’s definition of “conduct” (“an act or omission and its accompanying mental state”) (Penal Law § 15.00 [4]; compare Henderson v Hames, 287 Ga 534, 538 [2010] [“Thus, the commission of a crime requires ‘a joint operation of the act or omission to act [or actus reus] and intention or criminal negligence [or mens rea]’”]). The Hall court wrongly assumed that the word “intention” (contained in Ga Code Ann § 16-2-1 [a] [defining “crime”]) cured the Georgia burglary statute’s omission of a specific mens rea element (“knowingly”). But, as noted above, 31 Georgia case law does not interpret the word “intention” as “an intention to violate a penal statute” or as a mens rea element strictly equivalent to New York’s “intentionally” (Penal Law § 15.05 [1]). Instead, the word intention “refers to the proposition that one intends the consequences of his voluntary actions” (Schwerdtfeger v State, 167 Ga App 19, 20 [1983] [citations omitted]). While all crimes in Georgia require “a joint operation of an act or omission to act and intention or criminal negligence” (Ga Code Ann § 16-2-1 [a] [emphasis added]), this intention “does not always equate to mental fault, guilty knowledge, or purposeful violation of the law” (State v Ogilvie, 292 Ga 6, 8 [2012]). Instead, the general “criminal intent” that must be proven by the State of Georgia, in every criminal prosecution, simply means proving that the proscribed conduct was performed voluntarily — i.e., that the defendant’s act was “the product of conscious mental activity involving some degree of effort or determination” (Ogilvie, 292 Ga at 9 [citation omitted]; compare Penal Law § 15.00 [2] [a “voluntary act” is “a bodily movement performed consciously as a result of effort or determination”]). Thus, the meaning of “intention” in Georgia (under Ga Code Ann § 16-2-1 [a]) is a far cry from the specific meanings of New York’s four, statutorily-defined, mens rea elements. In New York, a person acts: 32 • “intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct” (Penal Law § 15.05 [1]) • “knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists” (Penal Law § 15.05 [2]) • “recklessly with respect to result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists” (Penal Law § 15.05 [3]) • “with criminal negligence with respect to result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists” (Penal Law § 15.05 [4]).2 Nevertheless, citing Thompson and Hall, the Toliver court rejected the “defendant’s contention that his conviction for burglary under Georgia Code Annotated § 16-7-1 is an improper predicate for his adjudication as a persistent violent felony offender” (226 AD2d at 256). The Toliver court wrongly concluded that the defendant’s “contention that the Georgia statute lacks the mens rea requirement of the equivalent New York statute (Penal Law § 140.25) [was] contradicted by express statutory provisions, requiring acquittal where ‘intention’ is lacking (Georgia Code Annotated § 16-2-2) or where the otherwise unlawful act or omission is justified by the defendant’s ‘misapprehension of fact’ (Georgia 2 In Georgia, the phrase “criminal negligence” is defined as “an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby” (Ga Code Ann § 16-2-1 [b]). 33 Code Annotated § 16-3-5).” In other words, the Toliver court wrongly concluded that the mere existence of two potential affirmative defenses in Georgia supplied an essential element (“knowingly”) that was missing from Georgia’s burglary statute. Toliver and the German Grandmother Words derive their power and their significance from their agreed-upon meaning. The critical flaw in the Toliver analysis is the erroneous assumption that “intention” in Georgia means the same thing as “intentionally” in New York. It does not. Even though these two words, on their face, seem similar, their meanings are quite different and, most certainly, are not strictly equivalent. This critical flaw in the Toliver analysis (equating “intention” with “intentionally”) calls to mind the story of the German grandmother who spoke very limited English. On her first visit to the United States, she was very puzzled and somewhat disturbed by a common feature of the shopping malls. Very seriously, she asked an American relative the following question: Why are there so many gift shops in America? After a few moments of discussion, they both laughed at the linguistic misunderstanding. In the German language, the word “gift” means poison. 34 K. Other arguments raised sua sponte by the dissent are meritless. When addressing the dissenting Justice’s arguments, the Appellate Division’s majority made two points. First, it cannot be assumed from the status of criminal trespass as a lesser included offense of burglary in Georgia “that ‘knowingly’ must be an element of the greater offense.” Second, “the dissent has failed to present any Georgia case law specifically reading the ‘knowingly’ requirement into the Georgia burglary statute” (Helms, 141 AD3d at 1140) The People have failed to rebut either point. The Lesser-Included-Offense Argument The Appellate Division expressly rejected the dissenting Justice’s conclusion that “knowingly” can be read into Georgia’s burglary statute because Georgia case law treats criminal trespass as a lesser included offense. As a preliminary matter, the People never established that the law of lesser included offenses operates the same way in Georgia and New York. In fact, the People never raised any lesser-included argument before the trial court or before the Appellate Division. Moreover, while criminal trespass in Georgia, under some circumstances, may be a lesser included offense of burglary in Georgia, the Appellate Division correctly disagreed with the dissent’s conclusion that this finding was dispositive. Instead, the Appellate Division, applying a basic rule of statutory construction, 35 found that Georgia’s inclusion of the word “knowingly” in other penal statutes, including criminal trespass, supported a conclusion that Georgia’s legislature purposefully omitted that word from its burglary statute (see McKinney’s Cons Laws of NY, Book 1, Statutes § 74). Such a purposeful omission by Georgia’s legislature was not irrational. Nor should it be second-guessed by out-of-state courts. Georgia’s legislature expressly imposed a “knowingly” element for criminal trespass (a misdemeanor) when a defendant “knowingly and without authority: [e]nters upon the land or premises of another person . . . for an unlawful purpose” (Ga Code Ann § 16-7-21 [b] [1]). For the felony of burglary, however, Georgia’s legislature relieved the State of its burden to establish, as part of its prima facie case, that the defendant was consciously aware that the entry was “without authority.” In its place, Georgia’s legislature imposed greater burdens upon the State, requiring it to prove that the defendant entered a building (not just land or premises) and entered “with the intent to commit a felony or theft therein” (not just for an unlawful purpose) (Ga Code Ann § 16-7-1 [a]). In other words, Georgia’s legislature decided that felony punishment was appropriate for (1) any entry (2) into a building (3) with intent to commit a felony or theft so long as the entry was (4) “without authority” (the four essential elements of burglary in Georgia). 36 Hypothetically, if the People had argued (in the courts below) that the law of lesser included offenses operates the same way in Georgia and New York, then Mr. Helms would have cited the full Georgia statute (Code Ga Ann § 16-1-6): “An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” On its face, the Georgia statute defines at least three different ways that a Georgia defendant might be able to obtain a jury instruction for a lesser included offense.3 But, the Georgia cases cited by the People and the dissent to support their lesser-included-offense argument involve a lesser-included-offense theory (proof of “a less culpable mental state”) that has absolutely nothing to do with importing a second mens rea element into Georgia’s burglary statute. 3 In Georgia, the “required evidence” test has been adopted to determine whether one crime is “included” in another under the statute’s first theory of lesser included offense (“proof of the same or less than all the facts”) (see Drinkard v State, 281 Ga 211 [2006]). Under Georgia law, however, it is unclear whether criminal trespass (which requires proof of a “knowingly” element) and burglary (which requires proof of “higher” elements – such as a building and an intent to commit a felony or a theft) would satisfy the “required evidence” test (where crimes are not “included” if “each provision requires proof of a fact which the other does not”) (Drinkard, 281 Ga at 215). 37 In Georgia, burglary requires a defendant to enter “with the intent to commit a felony or theft” (Ga Code Ann § former 16-7-1 [a]) whereas criminal trespass only requires a defendant to enter for “an unlawful purpose” (Ga Code Ann § 16-7- 21 [b] [1]). Criminal trespass is available as a lesser included offense under “a less culpable mental state” theory (Ga Code Ann § 16-1-6 [1]) where the trial evidence would support a jury finding that the defendant entered for some unlawful purpose (but less culpable than an intent to commit a felony or a theft) (see Hiley v State, 245 Ga App 900, 901 [2000] [loitering]; Waldrop v State, 300 Ga App 281, 284- 285 [2009] [loitering or prowling]; see also Redford v State, 309 Ga App 118, 120, n6 [2011]). On the other hand, where a defendant claims that his entry was for a lawful purpose, a jury instruction on criminal trespass is not available (see Sanders v State, 293 Ga App 534, 536 [2008]; Moore v State, 280 Ga App 894, 898 [2006] [no criminal trespass where defendant “testified that he entered the business for a lawful purpose”]; Dillard v State, 323 Ga App 333, 336 [2013] [no criminal trespass where defendant testified that, while intoxicated, he “simply wandered into the wrong house, thinking he was staying there”]). Importantly, this particular Georgia distinction in culpable mental states has absolutely nothing to do with the issue at hand: whether “knowingly” (a second 38 mens rea element required for burglary in New York) must be read into Georgia’s burglary statute as an implied element. Ultimately, the lesser-included-offense argument now made by the People (adopted from the opinion of the dissenting Justice) seems to apply the “logic” of New York’s law on lesser included offenses to Georgia’s statutes. But, because New York law is different from Georgia law, this mix-and-match logic is invalid. In New York, CPL 1.20 (37) defines a lesser included offense as follows: “When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a “lesser included offense.” No Georgia case law has been cited where this New York rule was applied. Moreover, the People’s logic seems backwards. If Georgia’s burglary statute had a “knowingly” element and Georgia’s criminal trespass statute did not, then maybe one could argue that a person could not commit a Georgia burglary without also committing criminal trespass. But the reverse situation is true. In Georgia, “knowingly” is an element of criminal trespass, not burglary. The Price/Stillwell Argument Georgia permits a mistake-of-fact defense (see Ga Code Ann § 16-3-5 [“A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have 39 justified the act or omission”]). Because the statute is generic, however, Georgia case law has had to flesh out the limits of its application. Georgia case law permits a defendant charged with burglary to raise a mistake-of-fact defense. This particular defense permits the defendant to ask the jury to find that an illegal entry into a building should be “justified” (legally excused) because the defendant mistakenly believed that he had authority to enter. The material element at issue (an entry “without authority”) is “negated” (justified or legally excused) in the same sense that a defense of justification in New York could excuse an otherwise illegal act (see Penal Law Article 35 – Defense of Justification). Price v State (289 Ga 459 [2011]), cited by the dissent (Helms, 141 AD3d at 1143), is an excellent example of how Georgia’s mistake-of-fact defense should be applied in a Georgia burglary case. Although the Supreme Court of Georgia held that the trial evidence was legally sufficient to sustain the defendant’s burglary conviction (289 Ga at 459), it ordered a new trial because the trial-level court had improperly denied the defendant’s request for a jury instruction on a mistake-of- fact defense (289 Ga at 459-461). In Price v State (303 Ga App 589 [2010]), the Georgia Court of Appeals affirmed the trial court’s denial of a mistake-of-fact jury instruction, ruling that a burglary defendant must claim that he entered a building for a lawful purpose 40 before he could claim that such entry was induced by his mistaken belief that the entry itself was authorized. But the Supreme Court of Georgia expressly disagreed, ruling that a defendant’s entitlement to a jury instruction on a mistake- of-fact defense did not depend upon whether the defendant entered the building for a lawful or an unlawful purpose (289 Ga at 459-461). Contrary to the dissent’s interpretation (see Helms, 141 AD3d at 1143), Price did not suggest that a “knowingly” mens rea element must be read into Georgia’s burglary statute. A careful reading of Price shows that the essential element being “negated” was the illegality element (“without authority”). “Because Price presented evidence that he acted under a misapprehension of fact which, if true, would have justified his entry into the house and would have authorized the jury to acquit him of burglary, the trial court was obligated to charge the jury on mistake of fact unless the charge given otherwise fairly presented this issue to the jury” (Price v State, 289 Ga 459, 460 [2011]). “Because Price's defense was based on the idea that he was authorized to enter the house as an interested buyer, and because this authorization alone would have eliminated one of the essential elements of burglary that the State was required to prove, Price's intent after he entered the house was irrelevant to his mistake of fact defense to burglary” (Price v State, 289 Ga 459, 461 [2011]). “Indeed, Price was not required to admit to having any intent to steal anything in the house in order to assert his mistake of fact defense, as the element of the crime being negated by his mistake of fact defense had nothing to do with whether or not Price had an intent to steal once he 41 was inside, but only whether he was authorized to ‘enter[ ] . . . the dwelling house’ in the first place” (Price v State, 289 Ga 459, 461 [2011] [emphasis added]). Like justification in New York, Georgia’s mistake-of-fact defense, in a sense, does have a “mental component.” The statute requires an actual inducement to commit an otherwise illegal act based upon the defendant’s awareness of “facts” that the defendant believes to be true (Ga Code Ann § 16-3-5). The dissent also cited Stillwell v State (329 Ga App 108 [2014]) but Stillwell did not read a “knowingly” mens rea element into Georgia’s burglary statute. Instead, Stillwell merely held that the defendant was not entitled to a mistake-of- fact jury instruction because his alleged defense involved a “mistake of law” rather than a mistake of fact (see 329 Ga App at 109-110 [The house entered by the defendant was “for sale” but that uncontested fact, standing alone, did not give a potential buyer any authority to enter the house]). Finally, the dissent quoted dicta from Stillwell - to wit, that a mistake-of-fact defense “negates the existence of the mental state required to establish a material element of the crime” (Helms, 141 AD3d at 1143, quoting Stillwell v State, 329 Ga App 108, 110 [2014] [emphasis added]). The original source of this dicta was Jones v State (263 Ga 835 [1994] [a “shaken-baby” case where the defendant’s conviction was affirmed]). Contrary to the dissent’s argument, however, this unidentified “mental state” does not constitute a material or essential element of 42 burglary in Georgia. Instead, Georgia’s mistake-of-fact defense permits a burglary defendant to raise a mistaken belief of fact as a legal excuse for an otherwise illegal act (an entry “without authority”) when the defendant’s mistaken belief actually induced the defendant’s entry into the building and, if true, the mistaken belief would have authorized that entry. The Lack of Georgia Case Law In effect, the Appellate Division’s dissenting Justice took on the role of a Georgia court and decided, apparently as a matter of Georgia law, that Georgia’s burglary statute has an implied mens rea element (“knowingly”). But no other “Georgia court” has ever made this specific determination. Undeterred, the People boldly assert that “[i]n Georgia, the prosecution must prove beyond a reasonable doubt that a person knowingly entered or remained unlawfully in a building in order to be convicted of burglary” citing Sanders v State (293 Ga App 534, 536 [2008]) (Appellant’s Brief at 13). But this assertion has three glaring problems. First, it fails to perceive any distinction between the illegal entry elements (“unlawfully” in New York; “without authority” in Georgia). Second, it fails to distinguish between essential elements of a crime and defenses to that crime. Third, Sanders v State (293 Ga App 534, 536 [2008]) does not support the People’s bold assertion. 43 In Sanders, the Georgia appellate court affirmed the trial court’s decision to deny the defendant’s request for a jury instruction on a lesser included offense (criminal trespass). But the rationale for the denial had absolutely nothing to do with importing an essential element (“knowingly”) into the State’s prima facie case. Instead, the Sanders court merely applied Georgia case law holding that where a defendant claims that his entry was for a lawful purpose (defendant Sanders testified that he “was in the house to perform electrical work”), a jury instruction on criminal trespass is not available. Contrary to the People’s suggestion, the Sanders court did not import a second mens rea element into Georgia’s burglary statute. A Final Note Lastly, the People claim that “[t]he verbiage ‘without authority’ as understood by the State of Georgia, is the functional equivalent of New York’s verbiage ‘knowledge’” (Appellant’s Brief at 13). Once again, this is plainly wrong. Georgia’s element of entering a building “without authority” is most similar to New York’s element of entering a building “unlawfully.” In any event, as previously discussed, these illegality elements are not strictly equivalent. “Without authority” in Georgia permits the State, in theory, to establish an illegal entry under circumstances where the same proof in New York would not establish that the defendant entered a building “unlawfully” (see Section I, infra). 44 L. Marlo Helms was properly resentenced as a first felony offender. The People never satisfied their burden to establish that burglary in Georgia was “strictly equivalent” to burglary New York. As a result, the Appellate Division correctly held that Mr. Helms’ conviction for burglary in Georgia could not serve as a predicate felony for sentencing purposes (People v Helms, 141 AD3d 1138 [4th Dept 2016]). 45 CONCLUSION This Court should affirm the Appellate Division. Dated: November 17, 2016 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Respondent _________________________ BY: DAVID R. JUERGENS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4093 Pursuant to 22 NYCCR 500.13 (c) (1), I, David R. Juergens, by way of my signature above, certify that the word-processing system’s word count used to prepare this brief indicates that 10,222 words were used in the body of this brief.