The People, Respondent,v.Clemon Jones, Appellant.BriefN.Y.February 18, 2015Brief Completed: To Be Argued By: Time Requested: August 5, 2014 Geoffrey Kaeuper 15 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, -vs- CLEMON JONES, Respondent, Defendant-Appellant. BRIEF FOR RESPONDENT APL- 2014-00042 SANDRA DOORLEY District Attorney of Monroe County Attorney for Respondent By: Geoffrey Kaeuper Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4674 Fax: (585) 753-4576 TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTION PRESENTED PRELIMINARY STATEMENT STATEMENT OF FACTS POINT I CONCLUSION Defendant was eligible to be sentenced as a persistent felony offender based upon his prior New York and federal convictions. -i- .. 11 1 2 3 5 14 TABLE OF AUTHORITIES FEDERAL CASES Griffin v Mann, !56 F3d 288 (2d Cir 1998) ... . .... .. .. ... ........... . .. .. .. ... .. .. 13 CASES People v Jones, I 09 AD 3d 1108 (4th Dept 20 13) .. . .. . . . . .. . .. . .. . . . . . . . .. . . . . . .. . 4, 9 People v Meckwood, 20 NY3d 69 (2012) .. . .. . . .. . .. .. . .. .. . . .. . .. . .. . .. . . . .. .. .. . 12 People v Pacheco, 53 NY2d 663 (1981) ... .. ... . ..... . .. .. ... . .... ...... .. ... .. .. 10 People v Parker, 41 NY2d 21 (1976) . .. .. . .. .. ........ .... . .. ..... ... .. ....... lOt 11 People v Quinones, 12 NY3d 116 (2009) .... . ... .. ... . ... .. .... . .. . ............... 13 People v Scarbrough, 66 NY2d 673 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v Shannon, 89 NY2d 1000 (1997) . .. ... ........... .. ...... ... ............. 13 People v. Olah, 300 N.Y. 96,89 N.E.2d 329 (1949) . .. ...... .. ............ . ...... 5, 7, 8 STATUTES 18 u.s.c. 922 . ... . ... .. .. .. .... . ... . ................. . ... . ...... . ....... . ... . 3 18 u.s.c. 924 . . . . . ... .. .. ... .. .. ... . ..... . .. . . .. ..... . ... . .. . ......... ... .. 3, 7 CPL 440.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9 CPL 450.90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 CPL 460.15 .. .. ... . .. .. .... .. ... ......... . ............ . .. . ... . ... .. .... . .... . 4 CPL 470.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Executive Law§ 71 .... . . .. . . .... . ... .. ... ........... . ... .. .............. . . . 6, 9 NY Const, art VI, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 PL § 30.10 . . .. . . . ..... . ....... . ......... .. ... . .... . ......... . . . .. . . . ... . ..... 8 -ii- PL § 70.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 PL § 70.06 ............................................................. 5, 6, 10 PL § 70.08 .................................................. . ............... 5 PL § 70.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 PL § 170" I 0 .......... . ... " ....... " ........................................... 3 PL § 170.15 .................................................................. 3 PL§170.25 ......... ... ........ ....... .. ....... .. ........ . ....... .. .. .. 2,11,12 Statutes§ 76 .................................................................. 7 Statutes§ 92 .................................................................. 7 -iii- OVESTION PRESENTED Question: Must a federal felony have a New York equivalent in order to qualify as a "crime in any other jurisdiction" for purposes of the persistent felony offender statute notwithstanding that the statute does not include such a requirement? Answer of the Sentencing Court: No. Answer of the Appellate Division: No. 1 PRELIMINARY STATEMENT Defendant Clemon Jones was convicted, upon a jury verdict, rendered on March 16, 2007, of two counts of criminal possession of a forged instrument in the second degree (Penal Law § 170.25) in Monroe County Court (Hon. Richard A. Keenan, J.). Defendant was sentenced on September 4, 2007, as a persistent felony offender, to concurrent indetenninate terms of incarceration of 15 years to life for each conviction. There has been no stay of the sentence and.defendant is currently in custody (http://nysdocslookup.docs.state.ny.us [DIN: 07-B-2912]). 2 STATEMENT OF FACTS A Monroe County Grand Jury indicted defendant on 118 counts of criminal possession of a forged instrument in the first degree (Penal Law§ 170.15) and two counts of criminal possession of a forged instrument in the second degree (§ 170.10) (Record on Appeal [hereinafter "R"] 9 ['12]). At a jury trial, defendant was convicted of the two second degree counts but the jury hung on all of the first degree counts. Prior to sentencing, the People moved to have defendant adjudicated a persistent felony offender, based upon his convictions for seven felonies, as well as numerous misdemeanors convictions, probation violations, and parole revocations (R 17-24 ). The only convictions that qualified as previous felonies within the meaning of the persistent felony offender statute, however, were five convictions for conduct occurring on two separate dates. On one date, defendant was convicted under New York law for criminal sale of a controlled substance in the second degree and two counts of criminal possession of a controlled substance in the third degree. On a second date, defendant was convicted under federal law for making a false statement on a Bureau of Alcohol, Tobacco, and Firearms fonn (18 U.S.C. 924 [a]), and for being a convicted felon possessing a firearm (18 U .S.C. 922 [g]) (R 18). 3 Following a hearing, the court issued a written decision in which it found defendant to be a persistent felony offender based upon those prior federal and New York State convictions (R 48-49). On September 4, 2007, defendant was sentenced to concurrent indeterminate terms of imprisonment of 15 years to life for each count of criminal possession of a forged instrument in the second degree (R 66-67). On Aprill, 2009, defendant filed a motion to vacate his sentence pursuant to CPL 440.20 (1) on the ground that the federal felony convictions that served, in part, as the basis for his adjudication as a persistent felony offender were not previous felony convictions as defined in Penal Law§ 70.10 (1) (b) because they were not "comparable to New York Penal Law felony statutes" (R 11-15). The court denied the motion without a hearing (R 6). A Justice of the Appellate Division, Fourth Department, granted defendant leave to appeal the denial pursuant to CPL 460.15 (R 5), and the Appellate Division affirmed the denial (People v Jones, 109 AD3d 1108 [4th Dept 2013]). The Hon. Susan Phillips Read thereafter granted defendant leave to appeal to this Court (R 133). 4 POINT I Defendant was eligible to be sentenced as a persistent felony offender based upon his prior New York and federal convictions. Defendant was properly sentenced as a persistent felony offender. In order to be eligible for sentencing as a persistent felony offender, a defendant must "stand[ ] convicted of a felony after having previously been convicted of two or more felonies" (Penal Law§ 70.10 [1] [a]). Subject to provisions not in dispute here, a conviction for which more than a year of incarceration was imposed qualifies as a previous felony conviction if it is "a conviction of a felony in this state, or of a crime in any other jurisdiction" (Penal Law§ 70.10 [1] [b]). In contrast to the second felony offender, second violent felony offender, and persistent violent felony offender statutes (see Penal Law§ 70.04 [1] [b] [i]; § 70.06 [1] [a] [i]; § 70.08 [1] [b]), the persistent felony offender statute does not state that a foreign conviction must be equivalent to a New York felony. Accordingly, the test for New York equivalency set forth in People v Olah (300 NY 96 [ 1949]) does not apply to persistent felony offenders. Defendant, however, now claims that the 0/ah test must be read into the persistent felony offender statute in order to save the statute from supposed constitutional defects. Specifically, defendant claims that, without the 0/ah test, 5 the statute violates equal protection, delegates the legislative function, and incorporates foreign statutes into New York law. These new arguments are all unpreserved for review by this Court because they were not raised in the motion before County Court and the requisite notice was not given to the Attorney General (see Executive Law§ 71). Additionally, defendant's equal protection claim is barred by lack of standing. And in any event, none of defendant's constitutional claims have merit. A. The persistent felony offender statute does not require that a foreign conviction be equivalent to a New York felony to count as a predicate conviction. The persistent felony offender statute does not require that a foreign conviction be equivalent to a New York felony to count as a predicate conviction. Whereas the other recidivist statutes explicitly require that a foreign conviction be "of an offense" for which more than a year of imprisonment "is authorized in this state" (Penal Law§ 70.04 [1] [b] [i]; § 70.06 [1] [a] [i]), the persistent felony offender statute does not in any way limit the applicability of foreign convictions by reference to New York criminal law. So long as the conviction is for a "crime" in the foreign jurisdiction, it qualifies under the statute regardless of how this state's criminal law would treat the same conduct. 6 The statute's silence as to New York equivalency is dispositive. "Where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation" (Statutes§ 76). The persistent felony offender statute provides a distinct test for determining whether a foreign conviction qualifies as a previous conviction, and that test makes no reference to New York equivalency. The statute, therefore, cannot be read to limit prior felony convictions from other jurisdictions to those that satisfy the 0/ah test. Even if there were some ambiguity in the words of the statute itself, it still would not be possible to import the 0/ah test into the statute. "The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature" (Statutes§ 92 [a]). The legislative history of the persistent felony offender statute makes clear that the New York equivalency test was specifically considered and rejected. The present statute was enacted as part of the 1965 revision of the Penal Law, which resulted from the work of the Temporary Commission on Revision of the Penal Law and Criminal Code, chaired by the Honorable Richard Bartlett. The Staff Notes of the Commission explained the treatment of foreign convictions for purposes of the proposed persistent felony offender statute as follows: 7 "Under the proposed provision a conviction of a 'crime' in any other jurisdiction will be counted, irrespective of whether such crime would have been a felony in this state. The test would be whether the offender was actually imprisoned under a sentence with a term in excess of one year or under a commuted death sentence. Pursuant to existing law, the test is whether the crime would have been a felony in New York State. This is an extremely difficult rule to administer. It involves a myriad of complex distinctions and, moreover, it may often mandate rejection of substance for highly technical reasons (See e.g., People v. Olah, 300 N.Y. 96, 89 N.E.2d 329 [1949]). It is true that the proposed test permits the court to base a persistent offender sentence upon a prior out of state conviction for an act which, if committed here, would be a misdemeanor or would not even be a crime. But there is certainly nothing unjust or illogical in permitting the court to consider the prevailing norms in the jurisdiction where the act was committed (see commentary, Model Penal Code, Tent. draft No.2, p. 47). Moreover, certain serious Federal crimes are not crimes under the laws of this State. The discretionary feature allows the court to weigh the substance of the foreign conviction and consider all of the circumstances. This will provide fairness to the offender and protection for the public" (Commission Staff Notes on the Proposed New York Penal Law§ 30.10 at 285 [1964]). Given this legislative history, it would be perverse to read into the statute a New York equivalency requirement for foreign convictions. The Commission carefully considered that requirement and rejected it as "extremely difficult . . . to administer." And the Commission determined that its alternative formulation for foreign convictions was logical, fair, and promoted public safety. Ascertaining and giving effect to the legislative intention requires that the Olah test not be applied here. The persistent felony offender statute means what it says. Foreign convictions may qualify as previous felony convictions regardless of whether they are for offenses that are equivalent to New York felonies. 8 B. Defendant's new constitutional claims are procedurally barred. In the CPL 440.20 motion that is the subject of this appeal, defendant did not raise the constitutional arguments he now presents to this Court (seeR 7-15). As he failed to raise them in the proceeding below, they do not present questions of law that are reviewable by this Court (see CPL 470.05 [2]; CPL 450.90; NY Const, art VI, § 3). Furthermore, even if defendant had raised these constitutional claims in his motion, County Court would have been barred from addressing them. When a challenge is made to the constitutionality of a state statute, notice must be given to the Attorney General so as to provide the Attorney General with an opportunity to intervene in support of the statute's constitutionality (see Executive Law § 71 [ 1 ]). When the notice is not given, the court "shall not consider any challenge to the constitutionality of such statute" (§ 71 [3]). Although defendant has now served the Attorney General with his brief to this Court, he did not do so at either County Court or the Appellate Division. Accordingly, those courts were barred from considering any constitutional challenges to the persistent felony offender statute. Lastly, defendant's equal protection argument is also procedurally barred by defendant's lack of standing. His argument is that the persistent felony offender statute is "arbitrary, capricious, and can create the unfair and nonsensical result" of someone being eligible for persistent felony offender status but, at the same time, 9 not being eligible for second felony offender status (App Br, 9). Defendant, however, is not such a person. Defendant specifically acknowledged that he was eligible to be sentenced as a second felony offender (R 7). Defendant "does not have standing to challenge the constitutionality of the statute as applied to one not in [his] position. One who challenges the constitutionality of a statute is required to establish that the enactment as applied to him violates a constitutional norm" (People v Parker, 41 NY2d 21,24 [1976]). Thus, even if it had otherwise been preserved, defendant's equal protection claim would be barred by lack of standing (see People v Pacheco, 53 NY2d 663 [1981]). C. Defendant's facial challenges to the constitutionality of the statute are without merit. Even if defendant's facial challenges to the statute were not procedurally barred, they would not entitle defendant to any relief. Both are foreclosed by this Court's decision in People v Parker (41 NY2d 21 [1976]). Parker dealt, not with the persistent felony offender statute, but with an earlier version of the second felony offender statute, Penal Law§ 70.06. That version of§ 70.06, however, similarly to the persistent felony offender statute now, permitted the use, as a previous felony conviction, of any foreign conviction "of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized irrespective of whether such sentence was imposed" (Penal Law [former] § 70.06 [1] [b] [i]). The defendant in Parker, as does defendant here with 10 respect to the persistent felony offender statute, claimed that the second felony offender statute "delegate[ d] the lawmaking function of the Legislature in violation of section 1 of article III of the New York State Constitution and . .. result[ed] in an incorporation by reference of other laws in violation of section 16 of article III of the State Constitution" ( 41 NY2d at 27). This Court found both claims to be without merit (id. at 27-28). Defendant now seeks to overrule Parker as to these constitutional claims. This Court, however, found in Parker that these claims could be "briefly dispose[ d) of' (id. at 27). They present no closer question today than in 1976. The only grounds defendant offers for overruling Parker are public statements - made before Parker was decided -as to what the best legislative policy would be (see App Br, 14-15). Such statements do not undercut this Court's determination as to constitutionality. It remains the case that article III§ 16 "was not intended to prohibit the Legislature from considering the criminal records of defendants in other jurisdictions in determining whether more serious punishment should be imposed upon habitual offenders" (Parker, 41 NY2d at 28). Likewise, it remains the case that article III § 1, "which was designed to insure a representative form of government in this State," simply "has no relevance or application to" the recidivist sentencing statutes (id.). The statute "merely applies the New York definition of a felony ... to crimes committed in other jurisdictions" and "sets ll forth the circumstances in which a crime committed in another jurisdiction may be considered a predicate felony in New York" (id. at 27-28). D. Defendant's as-applied challenge to the constitutionality of the statute is without merit. Defendant's as-applied challenge to the statute is likewise without merit. Defendant contends that the statute violates equal protection because someone could be eligible for persistent felony offender status without also being eligible for second felony offender status (App Br, 9). Because that claim does not involve "a suspect class or a fundamental right . .. , this statutory provision need only be supported by some rational basis to survive constitutional scrutiny" (see People v Meckwood, 20 NY3d 69,73 [2012] [internal quotation marks and citation omitted]). The persistent felony offender statute easily satisfies that test. Defendant does not dispute that the persistent felony offender statute serves a legitimate purpose, but claims that the difference between it and the second felony offender statute "only serves to breed inequality" (App Br, 9). But there is no reason to suppose that. It is perfectly rational to more closely circumscribe the class of prior convictions that will subject a defendant to enhanced punishment where only a second offense is at issue than where the defendant has exhibited an extensive history of lawlessness. Moreover, defendant overlooks the fact that persistent felony offender status is discretionary for the court whereas second felony offender status is mandatory 12 (compare People v Quinones, 12 NY3d 116, 128-129 [2009] with People v Scarbrough, 66 NY2d 673, 674 [1985]). It is perfectly rational to permit consideration of a wider range of prior offenses when the court imposing sentence has discretion to impose the enhanced sentence as the circumstances dictate as opposed to when the enhancement is automatic. Accordingly, there is nothing irrational in the persistent felony offender statute as applied to the hypothetical person defendant references (see Griffin v Mann, 156 F3d 288, 292 [2d Cir 1998]; cf. People v Shannon, 89 NY2d 1000 [1997] [second felony offender statute not unconstitutional as applied to defendant whose prior felony was a violation of the Vehicle and Traffic Law rather than the Penal Law]). 13 CONCLUSION The order denying defendant's CPL article 440 motion should be affinned. Dated: August 5, 2014 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney 14 STATE OF NEW YORK COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- CLEMON JONES, Defendant -Appellant. PDF CERTIFICATION I, GEOFFREY KAEUPER, ESQ., certify that I am an attorney admitted to practice in the State of New York, and that I compared the PDF brief and it is identical to the filed original printed materials. DATED: August5,2014 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- CLEMON JONES Appellant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Catherine Flaherty, being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen (18) years and resides at Rochester, New York. That on the 5th day of August, 2014, deponent served three (3) copies of the brief for Respondent, upon John A. Cirando, Esq., attorney for defendant~appellant in this action at 101 South Salina Street, Suite 1010, Syracuse, New York 13202-1350, by depositing a true copy of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. Sworn to before me this 5th day of August, 2014. ~~7r-Mz9 CA THERlNE FLAHERTY