The People, Respondent,v.Clemon Jones, Appellant.BriefN.Y.February 18, 2015 To be argued by: Estimated time: John A. Cirando, Esq. 15 minutes Syracuse, New York APL-2014-00042 STATE OF NEW YORK COURT OF APPEALS ________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against CLEMON JONES, Defendant/Appellant. __________________________ Monroe County Indictment No. 2006-0711 Appellate Division Docket No. KA-09-02028 __________________________ ____________________________________________________________________________________________________ THE DEFENDANT/APPELLANT’S REPLY BRIEF D.J. & J.A. CIRANDO, ESQS. Attorneys for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. Of Counsel i TABLE OF CONTENTS PRELIMINARY STATEMENT...........................................1 POINT I.........................................................2 APPELLANT WAS IMPROPERLY SENTENCED AS A PERSISTENT FELONY OFFENDER. ...as to whether the Persistent Felony Offender statute requires a foreign conviction to have a New York felony equivalent to count as a predicate conviction.................................3 ...as to whether appellant’s constitutional claims are procedurally barred.............................................5 ...as to appellant’s facial challenges to the constitutionality of Penal Law §70.06.............................................6 ...as to appellant’s as-applied challenge to the constitutionality of Penal Law §70.06...........................9 CONCLUSION.....................................................11 APPELLANT’S PERSISTENT FELONY OFFENDER STATUS SHOULD BE SET ASIDE, AND APPELLANT SHOULD BE RESENTENCED AS A SECOND FELONY OFFENDER. ii TABLE OF AUTHORITIES Cases People v. Behrman, 141 A.D.2d 372, 373 [1st Dept., 1988] .................. 10 People v. Blanchard, 288 N.Y. 145, 147-148 [1942] ............................. 7, 10 People v. Breckner, 179 A.D.2d 410, 410 [1st Dept., 1992] ........... 8, 10 People v. Gill, 109 A.D.2d 419, 420-421 [3rd Dept., 1985] ................. 8 People v. Hardy, 4 N.Y.3d 192, 197 ....................................................................... 5 People v. Lawrence 17 A.D.3d 697, 698 [2nd Dept., 2005] .................... 10 People v. Lovett, 92 A.D.2d 472, 472-473 [1st Dept., 1983] ............... 3 People v. Olah, 300 N.Y. 96, 98 [1949] ......................................................... 3, 4 People v. Parker, 41 N.Y.2d 21, 27 [1976] .................................................. 6, 7 People v. Ramos, 19 N.Y.3d 417, 419 [2012] .................................................... 4 People v. Santiago, 28 Misc.3d 1209 (A) [Bronx County Supreme Court, 2010] ................................................................ 4 People v. Sasso, 176 A.D.2d 410, 411 [3rd Dept., 1991]................... 8, 10 People v. Sudan, 298 A.D.2d 620 [3rd Dept., 2002]..................................... 4 People v. Trudo, 153 A.D.2d 993, 994 [3rd Dept., 1989]................... 8, 10 People v. Yusef, 19 N.Y.3d 314, 321 [2012] .................................................... 3 Statutes 22 NYCRR §500.9................................................................................................................. 2, 5 Alabama Code §18A-12-5 .................................................................................................... 8 Criminal Procedure Law §440.20................................................................................. 5 Criminal Procedure Law §470.05 [2] ....................................................................... 5 Executive Law §71 ................................................................................................................ 5 Florida Public Health Law 403.161 ......................................................................... 8 Michigan Penal Code §750.30 ........................................................................................ 8 Penal Law §70.04 [1] [b] [i] ......................................................................... 3, 4, 8, 9 Penal Law §70.06 [1] [b] ................................................................................... 3, 4, 8, 9 Penal Law §70.07 [3]................................................................................................. 4, 8, 9 Penal Law §70.08 [1] [b] ....................................................................................... 4, 8, 9 Penal Law §70.10 ...................................................................................................... 2, 5, 7, 8 Penal Law §70.10 [1] [b] ............................................................................................... 2 Penal Law §70.10 [b]......................................................................................................... 4 Penal Law §70.70 [1] [b] ....................................................................................... 4, 8, 9 Penal Law §70.70 [1] [b], §70.71 [1] [b]................................................. 4, 8, 9 Penal Law §70.80 [1] [c] ....................................................................................... 4, 8, 9 Texas Penal Code §43.23 [f] ........................................................................................ 8 Title 18 U.S.C. §1705 ...................................................................................................... 8 Title 18 U.S.C. §1708 ...................................................................................................... 8 Title 18 U.S.C. §922 [g] [1] ................................................................................... 10 Title 18 U.S.C. §924 [a] [10] ................................................................................. 10 APL-2014-00042 STATE OF NEW YORK COURT OF APPEALS ________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against CLEMON JONES, Defendant/Appellant. __________________________ Monroe County Indictment No. 2006-0711 Appellate Division Docket No. KA-09-02028 __________________________ THE DEFENDANT/APPELLANT’S REPLY BRIEF PRELIMINARY STATEMENT This Brief is submitted in response to the People's Brief, which was received, by counsel, on August 7, 2014. 2 POINT I APPELLANT WAS IMPROPERLY SENTENCED AS A PERSISTENT FELONY OFFENDER. The People (see The People’s Brief, p. 5) claim that appellant was properly sentenced as a Persistent Felony Offender due to his prior convictions of two or more felonies as the term is defined in Penal Law §70.10 [1] [b]. The People further assert (see The People’s Brief, p. 6) that whether Penal Law §70.10 violates equal protection, delegates the legislative function, and incorporates foreign statutes into New York law are “new” arguments and are unpreserved for review, by this Court, because they were not raised in the instant Criminal Procedure Law Article 440 Motion, and because requisite notice was not provided to the Attorney General. It is respectfully submitted, however, that the Persistent Felony Offender statute is unconstitutional, and that the claims set forth in the instant appeal are procedurally proper, and the Attorney General was served a copy of the Record on Appeal and Appellant’s Brief in accordance with Executive Law §71, and 22 NYCRR §500.9. 3 ...as to whether the Persistent Felony Offender statute requires a foreign conviction to have a New York felony equivalent to count as a predicate conviction. The People claim (see The People’s Brief, p. 7) that since the Persistent Felony Offender statute is silent as to whether a prior conviction must have New York equivalency, a different interpretation should not be read into the statute. The People also stress (see The People’s Brief, pp. 7-8) that the legislature considered and rejected an equivalency test calling it “extremely difficult...to administer” (Commission Staff Notes on the Proposed New York Penal Law §30.10 at 285 [1964]). The test---which requires a determination as to whether a foreign crime is equivalent to a New York felony based on a comparison of the elements of the foreign statute and the analogous Penal Law felony---set forth in People v. Olah (300 N.Y. 96, 98 [1949]), and utilized by courts for over a half a century in New York proves such concerns false. As this Court, and other appellate courts across the country1, have demonstrated, ascertaining whether an out-of-state conviction is a countable felony is not difficult to administer (see People v. Yusef, 19 N.Y.3d 314, 321 [2012]). In fact, the Second Violent Felony Offender (Penal Law §70.04 [1] [b] [i], People v. Lovett, 92 A.D.2d 472, 472-473 [1st Dept., 1983]); Second Felony Offender (Penal Law §70.06 [1] [b]; 1 As indicated in Appellant’s Brief (see pp. 21-24), currently 21 states administer a similar test as the one outlined in Olah (300 N.Y. at 98). 4 People v. Ramos, 19 N.Y.3d 417, 419 [2012]); Second Child Sexual Assault Felony Offender (Penal Law §70.07 [3]); Persistent Violent Felony Offender (Penal Law §70.08 [1] [b]; People v. Sudan, 298 A.D.2d 620 [3rd Dept., 2002]); Second Felony Drug Offender (Penal Law §70.70 [1] [b], §70.71 [1] [b]; People v. Santiago, 28 Misc.3d 1209 (A) [Bronx County Supreme Court, 2010]); and Predicate Felony Sex Offender (Penal Law §70.80 [1] [c]) statutes all utilize the Olah (300 N.Y. at 96) test without issue. Only the Persistent Felony Offender statute allows an out of state felony that has no New York equivalent, to count as a predicate conviction (Penal Law §70.10 [b]). Such a distinction, despite the legislature’s remarks, does not present a sufficient reason to single out a Persistent Felony Offender for harsher treatment than say a Persistent Violent Felony Offender, or any other type of predicate felon (Commission Staff Notes on the Proposed New York Penal Law §30.10 at 286 [1964]). Such a standard, which can breed arbitrary, capricious, and unfair results, should be determined to be unconstitutional (compare Penal Law §70.10 with Penal Law §70.04 [1] [b] [i]; Penal Law §70.06 [1] [b]; Penal Law §70.07 [3]); Penal Law §70.08 [1] [b]; Penal Law §70.70 [1] [b], §70.71 [1] [b]; Penal Law §70.80 [1] [c]). 5 ...as to whether appellant’s constitutional claims are procedurally barred. The People claim (see The People’s Brief, p. 9) that appellant’s Criminal Procedure Law §440.20 Motion did not raise the constitutional issues now presented, and thus such issues are not reviewable by this Court. Appellant’s pro-se Motion, however, should be read broadly (R-7-15). In his Motion, appellant asserts that the trial court improperly relied on federal convictions that had no New York equivalent (R-11-15). Appellant also claimed that the Persistent Felony Offender determination was made “in violation of his due process rights” (14). Accordingly, it is respectfully submitted that the issue is preserved for this Court’s review (14) (Criminal Procedure Law §470.05 [2]; see People v. Hardy, 4 N.Y.3d 192, 197---a specific and timely objection preserves an issue for review by this Court). The People then reiterate their claim (see The People’s Brief, pp. 6, 9) that appellant failed to provide proper notice to the Attorney General concerning his challenge to the constitutionality of Penal Law §70.10. As the People recognize (see The People’s Brief, p. 9), a copy of the Record on Appeal and Appellant’s Brief has been served to the Attorney General, and thus this Court is not barred from review of the issues (see Executive Law §71; 22 NYCRR §500.9). 6 The People claim (see The People’s Brief, pp. 9-10) that appellant’s equal protection claim lacks standing because appellant is not a person who would subject to the unfair and nonsensical result of being eligible for Persistent Felony Offender but, at the same time, not eligible for Second Felony Offender status. Alerting this Court to such a possible result is important to appellant’s argument, however, because it demonstrates the unconstitutionality of the statute, whether it applies to appellant, in this case, or not. In any event, appellant does not lack standing because he still is in the class of individuals who have a conviction of one New York Felony, but no second recognized New York felony, and yet are found to be a Persistent Felony Offender. Accordingly, appellant’s claims are not procedurally barred. ...as to appellant’s facial challenges to the constitutionality of Penal Law §70.06. The People assert (see The People’s Brief, pp. 10-11) that this Court should rely on its precedent in People v. Parker (41 N.Y.2d 21, 27 [1976]), which rejected the claim that the language of the Persistent Felony Offender statute delegates the lawmaking function of the New York State Constitution, and results in an incorporation of other laws in violation of §16 of Article III of the New York State Constitution. 7 It is respectfully submitted, however, that such concerns are real, possible, and existent (Penal Law §70.10). In Penal Law §70.10, the Legislature to gave up its responsibility to determine the proper punishment parameters for various criminal offenses, and relied on other jurisdictions discretion, contrary to the New York State Constitution (People v. Blanchard, 288 N.Y. 145, 147-148 [1942]---the definition of criminal offenses and the prescription of punishment is part of the legislative power). While the People note (see The People’s Brief, p. 11) that the numerous public statements relied on by appellant (see Appellant’s Brief, pp. 14-15) were made before Parker (41 N.Y.2d at 27) was decided, their logic still resonates today (Attorney General Memorandum for Governor, Re Assembly 8001, dated July 29, 1975; New York State Bar Association Letter to Governor’s Counsel Re: A.8001, dated July 29, 1975; Association of the Bar of the city of New York’s Letter to the Governor, Re: An Act to Amend the Penal Law in Relation to the Definition of a Second Felony Offender [No. 8001], undated). It also should be noted that the majority of jurisdictions do not follow New York’s methodology of determining whether one is a Persistent Felony Offender (see Appellant’s Brief, pp. 18-24). It also should be reiterated that in the 30 years since Parker (41 N.Y.2d at 27) Penal Law §70.10 stands alone in its 8 abdicating language permitting the use of foreign convictions as a predicate felony without a New York equivalent. The Second Violent Felony Offender (Penal Law §70.04 [1] [b] [i]); Second Felony Offender (Penal Law §70.06 [1] [b]); Second Child Sexual Assault Felony Offender (Penal Law §70.07 [3]); Persistent Violent Felony Offender (Penal Law §70.08 [1] [b]); Second Felony Drug Offender (Penal Law §70.70 [1] [b], §70.71 [1] [b]); and Predicate Felony Sex Offender (Penal Law §70.80 [1] [c]) statutes all require an underlying felony to have a New York equivalent to count as a predicate felony. As discussed (see Appellant’s Brief, p. 15), but not specifically countered by the People, sister states retain many laws which do not reflect New York values, and could lead to a defendant’s improper determination as a Persistent Felony Offender (Title 18 U.S.C. §1705; Title 18 U.S.C. §1708; Alabama Code §18A-12-5; Florida Public Health Law 403.161; Michigan Penal Code §750.30; Texas Penal Code §43.23 [f]). Accordingly, this Court should determine that the proper interpretation of Penal Law §70.10 was made in People v. Breckner (179 A.D.2d 410, 410 [1st Dept., 1992]); People v. Sasso (176 A.D.2d 410, 411 [3rd Dept., 1991]); People v. Trudo (153 A.D.2d 993, 994 [3rd Dept., 1989]); and People v. Gill (109 A.D.2d 419, 420-421 [3rd Dept., 1985]) which mandated that the 9 felonies used to invoke Persistent Felony Offender status must have New York equivalents. ...as to appellant’s as-applied challenge to the constitutionality of Penal Law §70.06. The People claim (see The People’s Brief, p. 12) that the Persistent Felony Offender statute (Penal Law §70.10) does not violate equal protection because it is supported by a rational basis. The People believe (see The People’s Brief, p. 12) 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 [predicate] offense is at issue, than where the defendant has exhibited an “extensive history of lawlessness.” The People overlook, however, that nowhere else in the Penal Law does such language exist when dealing with second [predicate] offenders. The Second Violent Felony Offender (Penal Law §70.04 [1] [b] [i]); Second Felony Offender (Penal Law §70.06 [1] [b]); Second Child Sexual Assault Felony Offender (Penal Law §70.07 [3]); Persistent Violent Felony Offender (Penal Law §70.08 [1] [b]); Second Felony Drug Offender (Penal Law §70.70 [1] [b], §70.71 [1] [b]); and Predicate Felony Sex Offender (Penal Law §70.80 [1] [c]) statutes all require an underlying felony to have a New York equivalent to count as a predicate felony. 10 The People also stress (see The People’s Brief, pp. 12-13) that Persistent Felony Offender status is only discretionary. A defendant, however, should be protected from ever having the trial court have the ability to utilize such discretion by first meeting constitutionally sound requirements for such status. Appellant’s convictions, CONVICTED FELON POSSESSING A FIREARM (Title 18 U.S.C. §922 [g] [1]) and MAKING FALSE STATEMENTS (Title 18 U.S.C. §924 [a] [10]) do not have analogous New York equivalents (see People v. Lawrence 17 A.D.3d 697, 698 [2nd Dept., 2005]; People v. Behrman, 141 A.D.2d 372, 373 [1st Dept., 1988]). As such, appellant should have never been in the position to be considered a Persistent Felony Offender (Penal Law §70). Therefore, it is respectfully submitted that appellant’s sentence, as a Persistent Felony Offender, is contrary to the law, and should be vacated for resentencing (Blanchard, 288 N.Y. at 147-148; Breckner, 179 A.D.2d at 410; Sasso, 176 A.D.2d at 410; Trudo, 153 A.D.2d at 995; Gill, 109 A.D.2d at 420-421). 11 CONCLUSION APPELLANT’S PERSISTENT FELONY OFFENDER STATUS SHOULD BE SET ASIDE, AND APPELLANT SHOULD BE RESENTENCED AS A SECOND FELONY OFFENDER. Respectfully submitted, D.J. & J.A. CIRANDO, ESQS. Attorneys for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. Of Counsel Dated: September 11, 2014