The People, Respondent,v.Clemon Jones, Appellant.

Brief

N.Y.February 18, 2015

Estimated time: To be argued by: 15 minutes John A. Cirando, Esq. Syracuse, New York 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 BRIEF D.J. & J.A. CIRANDO, ESQS. Attorney 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 TABLE OF AUTHORITIES.......................................................................................................... ii QUESTIONS PRESENTED ........................................................................................................... iv PRELIMINARY STATEMENT ....................................................................................................... 1 STATEMENT OF FACTS .............................................................................................................. 2 POINT I ........................................................................................................................................ 7 APPELLANT WAS IMPROPERLY SENTENCED AS A PERSISTENT FELONY OFFENDER. CONCLUSION ............................................................................................................................... 25 APPELLANT’S PERSISTENT FELONY OFFENDER STATUS SHOULD BE SET ASIDE, AND APPELLANT RESENTENCED AS A SECOND FELONY OFFENDER. ii TABLE OF AUTHORITIES Cases Dean v. Commonwealth, 61 Va.App. 209 [Court of Appeals of Virginia; 2009] ........................ 23 eople v. Ramos, 19 N.Y.3d 417, 419 [2012] ................................................................................ 24 eople v. Trudo, 153 A.D.2d 993, 994 [3rd Dept.; 1989] ............................................................ 16, 25 Fischer v. State, 483 P.2d 1165 [Court of Criminal Appeals of Oklahoma, 1971] ...................... 23 Fletcher v. State, 409 A.2d 1254, 1255 [Supreme Court of Delaware, 1979] .............................. 21 Griffin v. Mann, 156 F.3d 288, 290-291 [2nd Cir., 1998] ......................................................... 8, 11 Johnson v. State, __So.3d__ [Fourth District Court of Appeal of Florida; 2014] ........................ 22 People v. Behrman, 141 A.D.2d 372, 373 .............................................................................. 16, 17 People v. Blanchard, 288 N.Y. 145, 147-148 [1942] .......................................................... 14, 18, 25 People v. Breckner, 179 A.D.2d 410, 410 [1st Dept.; 1992] ............................................................ 15 People v. Drayton, 39 N.Y.2d 580, 584-585 [1976] ....................................................................... 9 People v. Gill, 109 A.D.2d 419, 420-421 ....................................................................................... 16 People v. Jones, 109 A.D.3d 1108, 1110 [4th Dept.; 2014] .................................................... 10, 11 People v. Lawrence, 17 A.D.3d 697, 698 ............................................................................... 16, 17 People v. Ortiz, 283 A.D.2d 256, 256 [1st Dept.; 2001] ............................................................... 10 People v. Parker, 41 N.Y.2d 21, 25 [1976] ................................................. 9, 10, 11, 12, 13, 16, 18 People v. Sasso, 176 A.D.2d 410, 411 [3rd Dept.; 1991] ........................................................... 15, 25 People v. Woodell, 17 Cal.4th 448, 452 [Supreme Court of California; 1998] ............................. 21 Skinner v. State, 987 So.2d 1172 [Court of Criminal Appeals of Alabama; 2006 ....................... 21 Statutes 18 U.S.C. §922 [g] [1] .................................................................................................................. 16 18 U.S.C. §924 [a] ........................................................................................................................ 16 County Law §722-c......................................................................................................................... 4 Criminal Procedure Law §440.20 ........................................................................................ 1, 4, 5, 6 Criminal Procedure Law §440.30 [7] ............................................................................................. 6 Criminal Procedure Law §450.10 .................................................................................................... 4 Criminal Procedure Law §450.15 .................................................................................................... 4 Penal Code §667 ........................................................................................................................... 21 Penal Law §70.06.................................................................................................................. 8, 9, 14 Penal Law §70.06 [1] [b] ........................................................................................................ 10, 24 Penal Law §70.10................................................................................ 7, 8, 9, 10, 11, 13, 14, 15, 24 Penal Law §70.10 [1] ................................................................................................................. 3, 11 Penal Law §70.10 [1] [a] .......................................................................................................... 7, 16 Penal Law §70.10 [1] [b] ............................................................................................................. 5, 7 Penal Law §70.10 [1] [c] .................................................................................................................. 3 iii Other Authorities §13 V.S.A. §11.............................................................................................................................. 23 11 Del.C. §4214 ............................................................................................................................ 21 21 Okl.St.Ann. §54 ....................................................................................................................... 22 42 Pa. C.S.A. §9714 [a] [2] ........................................................................................................... 23 A.C.A. §5-4-501 ........................................................................................................................... 21 A.R.S. §13-703 ............................................................................................................................. 19 Ala. Code 1975 §13A-5-9 (b) ....................................................................................................... 21 Alabama Code §18A-12-5 ............................................................................................................. 15 C.R.S.A §18-1.3-801 .................................................................................................................... 21 California’s Proposition 36 ........................................................................................................... 24 Code 1976 §17-25-45 ................................................................................................................... 23 F.S.A §775.084 ............................................................................................................................. 22 Florida Public Health Law 403.161 ................................................................................................ 15 Ga. Code Ann., §17-10-7 (a) ........................................................................................................ 22 Gen.Laws 1956, §12-19-21........................................................................................................... 20 I.C. §19-2514 ................................................................................................................................ 19 I.C.A. §902.8 ................................................................................................................................. 19 IC 35-50-2-8.................................................................................................................................. 19 K.S.A. §21-6706 ........................................................................................................................... 22 KRS 532.080 [1] ........................................................................................................................... 19 LSA-R.S. §15:529.1 ...................................................................................................................... 22 M.C.L.A. §769.12 ......................................................................................................................... 22 M.G.L.A. 279 §25 ......................................................................................................................... 18 MCA 46-18-501 ............................................................................................................................ 19 Michigan Penal Code §750.30 ....................................................................................................... 15 Miss. Code Ann. §99-19-81 .......................................................................................................... 19 N.C.G.S.A. §15A-1340.14 ............................................................................................................ 22 N.J.S.A. 2C:43-7.1 ........................................................................................................................ 22 N.M.S.A. 1978, §31-18-17 ........................................................................................................... 20 N.R.S. 207.010 .............................................................................................................................. 20 Neb.Rev.St. §29-2221 ................................................................................................................... 20 RCWA 9.94A.570 ......................................................................................................................... 24 SDCL §22-7-7 ............................................................................................................................... 20 T.C.A. §40-35-107 ........................................................................................................................ 23 Texas Penal Code §43.23 (f) .......................................................................................................... 15 Title 18 U.S.C. §1705 .................................................................................................................... 15 Title 18 U.S.C. §1708 .................................................................................................................... 15 V.T.C.A., Penal Code §12.42 ....................................................................................................... 23 VA Code Ann. §19.2-297.1 (A).................................................................................................... 23 W.S. 1977 §6-10-201 .................................................................................................................... 20 W.VA. Code §61-11-1 .................................................................................................................. 20 W.VA. Code §61-11-18 ................................................................................................................ 20 Constitutional Provisions New York State Constitution, Article III, §1 ................................................................................ 11 iv QUESTIONS PRESENTED 1. Whether the Persistent Felony Offender statute (Penal Law §70.10) should be interpreted to have a requirement that prior non-New York felonies have a New York equivalent, similar to the Second Felony Offender statute (Penal Law §70.06)? 1 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 BRIEF PRELIMINARY STATEMENT This is an appeal, by the appellant, from a Memorandum and Order of the Appellate Division, Fourth Department, entered on September 27, 2013, affirming an August 26, 2009 Order of the Monroe County Court (Richard A. Keenan, J.), which denied appellant’s Criminal Procedure Law §440.20 motion to set aside his persistent felony offender sentence. By Certificate Granting Leave, entered March 5, 2014, Leave to Appeal to the Court of Appeals was granted by Hon. Susan Phillips Reed, Associate Judge of the Court of Appeals. 2 STATEMENT OF FACTS On September 19, 2006, a Monroe County Grand Jury returned Indictment No. 2006-0711 charging appellant with the crimes of CRIMINAL POSSESSION OF A FORGED INSTRUMENT IN THE FIRST DEGREE (118 counts) and CRIMINAL POSSESSION OF A FORGED INSTRUMENT IN THE SECOND DEGREE (2 counts). The Indictment alleged that appellant possessed counterfeit United States currency (9). After a jury trial, appellant was found guilty of CRIMINAL POSSESSION OF A FORGED INSTRUMENT IN THE SECOND DEGREE (2 counts), but the jury could not reach a conclusion in regard to CRIMINAL POSSESSION OF A FORGED INSTRUMENT IN THE FIRST DEGREE (118 counts) (10). A Persistent Felony Offender Hearing was held on July 20 and 25, 2007 (26-45). On August 16, 2007, the People provided a Persistent Felony Offender Information alleging that appellant was previously convicted, on March 14, 1991, of the Federal crimes of MAKING FALSE STATEMENT ON BUREAU OF ALCOHOL, TOBACCO AND FIREARMS FORM and CONVICTED FELON POSSESSING A FIREARM (70)1. The People also alleged that appellant was convicted of the crimes of CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE SECOND DEGREE, and CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE THIRD DEGREE [2 counts] on March 17, 1995 (70). 1 There is no New York Penal Law felony equivalent for such conduct. 3 In a September 4, 2007 Decision and Order, the trial court determined that appellant was a Persistent Felony Offender (48- 53). The trial court acknowledged that appellant’s prior New York felonies may only be counted as one felony pursuant to Penal Law §70.10 [1] [c] (48). The trial court then found that appellant’s Federal convictions, however, “stand separate and apart” from the state convictions, and thus appellant had the requisite “two or more” felonies necessary for Persistent Felony Offender Status (Penal Law §70.10 [1]) (49-50). During the proceedings of September 4, 2007, the trial court found that appellant was a Persistent Felony Offender, and sentenced him to serve an indeterminate term of imprisonment having a minimum term of fifteen years, and a maximum term of life (55-68)2. Appellant filed a Motion, on October 23, 2008, for Appointment of Counsel and Investigative Services (92-96). Appellant requested the assignment of counsel, and investigative services to pursue a potential Criminal Procedure Law Article 440 Motion (94-95). The People opposed the Motion, and the trial court denied the Motion (81). After appellant appealed the trial court’s Order to the Appellate Division, Fourth Department, then Associate Appellate 2 The sentence as a Second Felony Offender would have been an indeterminate term of imprisonment having a maximum term between 4 and 7 years, and a minimum term of one-half of the maximum term (Penal Law §70.06 [3] [d], [4] [b]). 4 Division Justice Samuel L. Green, in a Memorandum to the Appellate Division, Fourth Department’s June 22, 2009 Order, indicated that he considered appellant’s Motion to be a Motion for an Order Assigning Counsel and authorizing appellant to obtain investigative services, and not a Criminal Procedure Law Article 440 Motion (91). Justice Green noted that the denial of appellant’s Motion pursuant to County Law §722 and §722-c was not appealable (Criminal Procedure Law §§450.10, 450.15) (91). In a Motion, received by Monroe County Court on July 6, 2009, appellant requested that his sentence be vacated pursuant to Criminal Procedure Law §440.20 (7-8). Appellant’s Affidavit in Support of his Motion asserted that the trial court improperly relied upon the Federal crimes despite the fact that they had no New York Penal Law equivalents (11). Therefore, appellant maintained that his status as a Persistent Felony Offender was contrary to the law; that such a status should be vacated; and that he should be resentenced as a Second Felony Offender (14-15). Appellant attached to his Motion: the People’s Application for Persistent Felony Offender Status (17-24); pages 3-22 of the Persistent Felony Offender Hearing (27-46); the trial court’s September 4, 2007 Decision and Order finding him to be a Persistent Felony Offender (48-53); pages 2-10 and 12-15 of appellant’s September 4, 2007 Sentencing Proceedings (55-68); August 16, 2007 Persistent Felony Offender Information, and 5 September 4, 2007 Sentence and Commitment Form (70-71); and the March 15, 1991 Federal Criminal Judgment Form (73-79). The People responded, on August 3, 2009, opposing appellant’s pro se Criminal Procedure Law §440.20 Motion (80-83). The People claimed that appellant was precluded from reasserting that one of the prior felonies did not constitute a felony in New York due to a prior Motion on the matter (82). The People also claimed that the instant Motion lacked merit because Penal Law §70.10 [1] [b] does not require that prior felonies be New York felonies, and in fact, provides that prior felonies can be either New York felonies, or crimes in “any other jurisdiction” (82). Appellant replied on August 14, 2009 (84-96). Appellant asserted that the Appellate Division, Fourth Department’s June 22, 2009 Decision indicated that his prior Motion was not a Criminal Procedure Law §440 Motion, and thus his claims were not precluded since no Decision regarding the merits of this contention had been made (85, 91). Appellant further claimed that a literal application of Penal Law §70.10 [1] [b] would render it unconstitutional, and reiterated that since his Federal convictions must constitute a felony in New York, and they did not, then he could not be sentenced as a Persistent Felony Offender (85). 6 In a Decision and Order, dated August 26, 2009, the trial court denied appellant’s Criminal Procedure Law §440.20 Motion “...for the reasons set forth in the People’s response” (6). By Order, dated November 30, 2009, then Associate Appellate Division Justice Samuel L. Green granted a Certificate for Leave to Appeal the instant Decision and Order pursuant to Criminal Procedure Law §460.15 due to his finding that there were questions of law or fact which ought to be reviewed (5). Appellant was advised to file a Notice of Appeal within fifteen days of the issuance of the Certificate (5). As a result, appellant filed his Notice of Appeal on December 2, 2009 (3-4). By Memorandum and Order, entered September 27, 2013, the Appellate Division, Fourth Department unanimously affirmed the August 26, 2009 Order of the Monroe County Court (Richard A. Keegan, J.), which denied appellant’s Criminal Procedure Law §440.20 Motion (127-131). The Appellate Division held that the trial court’s statement that it denied the Motion “...for the reasons set forth in the People’s response” was insufficient to satisfy the requirements of Criminal Procedure Law §440.30 [7] (6, 127). However, the Appellate Division concluded that the Record was sufficient for them to intelligently review the Order denying the Motion, and they declined to remit the matter for compliance 7 with Criminal Procedure Law §440.30 [7] since Monroe County Court Judge Richard A. Keenan had retired (127). The Appellate Division concluded that the Persistent Felony Offender statute (Penal Law §70.10 [1] [b]) allows the use of out of state felonies for which there are no New York counterparts as felonies, or even crimes themselves in New York (128-131). By Certificate Granting Leave, entered March 5, 2014, Leave to Appeal to the Court of Appeals was granted by Hon. Susan Phillips Read, Associate Judge of the Court of Appeals (133). Appellant is currently serving his Persistent Felony Offender sentence at the Wende Correctional Facility. POINT I APPELLANT WAS IMPROPERLY SENTENCED AS A PERSISTENT FELONY OFFENDER. Penal Law §70.10 provides for the enhancement of a sentence based upon Persistent Felony Offender status. The Persistent Felony Offender statute applies to defendants being sentenced for a felony who have previously been convicted of two or more felonies (Penal Law §70.10 [1] [a]). Penal Law §70.10 [1] [b] does not distinguish among felony convictions that arise under Federal, state, or out-of-state law provided that: the sentence was to a term of imprisonment in excess of one year; appellant was imprisoned under sentence for 8 such conviction prior to commission of the present felony; defendant was not pardoned on the ground of innocence; and that such conviction was for a felony offense other than persistent sexual abuse. By contrast, Penal Law §70.06, which governs Second Felony Offenders, requires that any underlying Federal or out-of-state felony must be recognized as a felony in New York to qualify as a predicate felonyecessary for Second Felony Offender status. A review of the constitutionality of Penal Law §70.10 was conducted in Griffin v. Mann (156 F.3d 288, 290-291 [2nd Cir.; 1998]). The Second Circuit held that Griffin’s (156 F.3d at 290) violation of the National Motor Vehicle Theft Act, which had no New York felony counterpart, and a New York felony conviction for the crime of CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE and CRIMINAL SALE OF A CONTROLLED SUBSTANCE were sufficient to constitute the two underlying felonies necessary for Persistent Felony Offender status. In dictum, the Second Circuit maintained its decision would not be different despite the potential anomalous situation of a defendant with two prior out-of-state felony convictions for crimes without a New York counterpart qualifying as a Persistent Felony Offender under Penal Law §70.10, but not as a Second Felony Offender under Penal Law §70.06 (Griffin, 156 F.3d at 291). The Second Circuit indicated that such a situation did not 9 amount to a distinction of constitutional significance (Griffin, 156 F.3d at 291). Such a distinction, however, does have constitutional significance (Penal Law §70.06, §70.10). The equal protection clause of the Fourteenth Amendment---section 11 of article I of the New York State Constitution---does not mandate absolutely equality, but prescribes that, absent a fundamental interest or suspect classification, a legislative classification be rationally related to a legitimate State purpose (People v. Parker, 41 N.Y.2d 21, 25 [1976]; People v. Drayton, 39 N.Y.2d 580, 584-585 [1976]). The anomaly that exists in the definition of a predicate felony in Penal Law §70.06, which mandates that a predicate criminal conviction have a New York equivalent, and Penal Law §70.10, which does not, is arbitrary, capricious, and can create the unfair and nonsensical result of an individual being eligible for Persistent Felony Offender status and a potential indeterminate term of imprisonment having a minimum of 15 years and a maximum term of life, but not being eligible for Second Felony Offender status. While the enhancement of a sentence when an individual has multiple felony offenses is a legitimate State purpose, the difference between the statutes does not, and only serves to breed inequality (compare Penal Law §70.06, and §70.10). 10 The Appellate Division, Fourth Department, however, in People v. Jones (109 A.D.3d 1108, 1110 [4th Dept.; 2014]) herein agreed with the Second Circuit in Griffin (156 F.3d 291), holding that the foreign felonies used to support Persistent Felony Offender status do not have to have a New York equivalent (see People v. Ortiz, 283 A.D.2d 256, 256 [1st Dept.; 2001]--- Ortiz’s California Burglary conviction, which would not have been a felony in New York was determined to be a proper predicate offense for Persistent Felony Offender status). The Appellate Division, Fourth Department found no constitutional issue with the Second Felony Offender statute (Penal Law §70.06 [1] [b]) requiring that an underlying out-of-state conviction be for a crime that has a New York felony equivalent, while the Persistent Felony Offender statute (Penal Law §70.10) does not (Jones, 109 A.D.3d at 1112). The Appellate Division, Fourth Department also relied on the legislative history of Penal Law §70.10, asserting that the drafters intended that the conviction of a “crime” in any other jurisdiction would be counted under the statute, irrespective of whether such crime would have been a felony in New York (Jones, 109 A.D.3d at 1112). The test instead focused on whether the defendant was actually imprisoned under a sentence with a term in excess of one year or under a commuted death sentence (Jones, 109 A.D.3d 1112). 11 The Appellate Division specifically relied on Legislative History indicating that: 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...(Staff Notes of Temp St Commn on Rev of Penal Law and Crim Code, 1964 Proposed NY Penal Law [Study Bill, 1964 Senate Intro 3918, Assembly Intro 5376] §30.10 at 285). It is respectfully submitted, however, that the interpretation of Penal Law §70.06 and Penal Law §70.10 by the Second Circuit in Griffin (156 F.3d at 290), and Appellate Division, Fourth Department in Jones (109 A.D.3d 1112), ignores that Penal Law §70.10’s definition of a qualifying predicate felony delegates the responsibility to prescribe punishment that vests in the legislative power of the State, and creates the very real danger that New York citizens will be excessively punished due to a conviction of a crime that may be unusual to New York, or simply not considered serious enough to warrant classification as a felony offense (New York State Constitution, Article III, §1). This Court in Parker (41 N.Y.2d at 25), while recognizing that Penal Law §70.06 [1] was modified to reflect its current status, determined that the former version of the law was 12 constitutional. Former Penal Law §70.06 [1] provided in pertinent part: (a) A second felony offender is a person who stands convicted of a felony defined in this chapter...after having previously been subjected to one or more predicate felony convictions as defined in paragraph (b) of this subdivision. (b) For purposes of determining whether a prior conviction is a predicate felony conviction the following criteria shall apply: (i) The conviction must have been in this state of a felony or in any other jurisdiction 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. This Court indicated that the imposition of Second Felony Offender status upon individuals convicted in other jurisdictions of crimes which in such jurisdictions warrant a sentence of imprisonment in excess of one year is rationally related to the valid government aim in treating habitual offenders more severely than first time offenders (Parker, 41 N.Y.2d at 26). This Court reasoned that the legislature exercised considerable judgment to provide that the seriousness of a crime should be determined by the severity of the sentence and the norms prevailing in the jurisdiction in which a crime was committed, and that the possible disparity of treatment 13 between prior New York offenders vis-à-vis prior out-of-state offenders does not vitiate the legislative decision that an individual who has previously elected to violate the criminal standards of the society in which he or she was found should be treated as an habitual offender (Parker, 41 N.Y.2d at 26). This Court also held that the former Penal Law §70.06: did not delegate the lawmaking function of the Legislature in violation of section 1 of article III of the New York State Constitution, and did not result in an incorporation by reference of others laws in violation of section 16 of article III of the New York State Constitution (Parker, 41 N.Y.2d at 27). The statutory definition of former Penal Law §70.06, and the current definition used in Penal Law §70.10, was determined to merely apply the New York definition of a felony---crimes which a term of imprisonment in excess of one year may be imposed---to crimes committed in other jurisdictions (Parker, 41 N.Y.2d at 27). The former version of Penal Law §70.06 was also determined not to incorporate another jurisdiction’s laws into New York, indicating that a foreign conviction will necessarily involve the application of foreign law, but it does not make that law applicable in New York (Parker, 41 N.Y.2d at 28). It is respectfully submitted, however, that this Court’s decision in Parker (41 N.Y.2d at 26-28) should not be followed. Penal Law §70.10 allows the Legislature to abdicate their 14 responsibility to determine the proper punishment parameters for various criminal offenses. Allowing the consideration of another jurisdiction’s sentence for an act improperly delegates the authority of punishment to an out-of-state legislative body, which is 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). When the Legislature modified Penal Law §70.06 to its current form they recognized the potential issues with the language currently used in Penal Law §70.10. For example, then Attorney General Louis J. Lefkowitz, supported the change in Penal Law §70.06 since it would “...insure that no one out-of-state criminal conviction could be a predicate felony unless that crime is a felony under the law of the State of New York” (Attorney General Memorandum for Governor, Re Assembly 8001, dated July 29, 1975). The New York State Bar Association also supported the revision, lamenting that the prior version---which is similar to current Penal Law §70.10---because it found it inequitable that a person could be convicted of a “felony” in a state or jurisdiction which has different values and standards as New York (New York State Bar Association Letter to Governor’s Counsel Re: A.8001, dated July 29, 1975). The Association of the Bar of the City of New York opined that the change in Penal Law §70.06 would be welcomed 15 because, “...penalties imposed on offenders before the Courts of this state should not be determined by what may be very different public policies in other states as to appropriate penalties of offenses committed there” (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). Such varied public policies are demonstrated through a plethora of acts which are punishable by a “felony,” but do not reflect New York values, and would not be considered felonies in New York, including: Title 18 U.S.C. §1705---throwing eggs at a mailbox is punishable by three years imprisonment; Title 18 U.S.C. §1708---taking any piece of mail from another is punishable by up to five years imprisonment; Alabama Code §18A-12-5---Bear Wrestling is a class B felony; Florida Public Health Law 403.161-- -an individual faces five years imprisonment for releasing 12 heart-shaped balloons into the air; Michigan Penal Code §750.30--- punishing adultery as a felony; and Texas Penal Code §43.23 (f)--- it is a felony to possess 6 or more dildos. Conviction of any two of the above crimes would qualify a defendant to be a Persistent Felony Offender, pursuant to Penal Law §70.10. Therefore, 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. 16 Trudo, 153 A.D.2d 993, 994 [3rd Dept.; 1989]; and People v. Gill (109 A.D.2d 419, 420-421) which required that the felonies used to invoke Persistent Felony Offender status must have New York equivalents. Accordingly, Persistent Felony Offender status should not be applied in the manner endorsed by the Second Circuit and Appellate Division, Fourth Department. Such cases should not be viewed as missteps in light of Parker (41 N.Y.2d at 26), but cases in which a more thoughtful, fair, and constitutional approach was utilized. In the case at bar, for example, appellant was determined to be a Persistent Felony Offender based upon his prior New York felony conviction in 1995 (CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE SECOND DEGREE, and CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE THIRD DEGREE [2 counts]), and based on his 1991 Federal convictions for the crimes of 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) which do not have analogous felonies in New York (see People v. Lawrence, 17 A.D.3d 697, 698 [2nd Dept.; 2005]; and People v. Behrman (141 A.D.2d 372, 373 [1st Dept.; 1988]). Appellant did not have a second New York State felony that would properly allow him to fit under the “two or more” felony requirement of Penal Law §70.10 [1] [a]. 17 In Lawrence (17 A.D.3d at 698) the Appellate Division, Second Department vacated Lawrence’s Persistent Violent Felony Offender sentence because the predicate crime of CONVICTED FELON POSSESSING A FIREARM did not require as one of its elements that the firearm be loaded, whereas the New York equivalent crime (Penal Law §265.02 [4]) requires possession of a loaded firearm. In Behrman (141 A.D.2d at 373) the Appellate Division, First Department vacated Behrman’s sentence as a Second Felony Offender because the predicate Federal crime of MAKING A FALSE STATEMENT ON A BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS FORM did not contain various elements which comprise the analogous New York felony. Specifically, contrary to the analog New York crime of OFFERING A FALSE INSTRUMENT FOR FILING IN THE FIRST DEGREE, it is possible to violate the Federal statute: without a written instrument; an offering of the false statement to a public office or public servant; the filing of the false statement with such public office or public servant; or the intent to defraud the State or any political subdivision thereof (Behrman, 141 A.D.2d at 373). Accordingly, neither Federal crime used by the prosecution herein, to constitute the second qualifying felony, in order to claim that appellant was a Persistent Felony Offender, was actually a New York State felony (70) (see Lawrence, 17 A.D.3d at 698; and Behrman, 141 A.D.2d at 373). 18 As previously discussed, this Court’s deference to the Legislature in Parker (41 N.Y.2d at 126) concerning this issue fails to recognize that such judgment abdicated its responsibility to determine the proper punishment parameters for a criminal offense in accordance with the New York State Constitution (Blanchard, 288 N.Y. at 147-148). Such an opinion is shared by the multitude of jurisdictions that do not follow the New York State Legislature’s decision to relinquish its responsibility to other states, or the Federal Government, in defining a qualifying felony offense. A review3 of the fifty states reveals that fourteen (14) states: Alaska; Connecticut; Delaware; Hawaii; Illinois; Maine; Maryland; Minnesota; Missouri; New Hampshire; Ohio; Oregon; Utah; and Wisconsin do not have habitual offender enhancement statutes at all. Massachusetts permits an enhanced sentence upon the third conviction of a crime that carries a sentence of not less than 3 years (M.G.L.A. 279 §25). North Dakota permits an enhanced sentence upon the third conviction of a crime that carries a sentence of not less than five years or more (NDCC 12.1-32-09). Fourteen (14) states, like New York, permit a sentencing enhancement irrespective of whether the underlying crime(s) are 3 The following research represents our best effort to ascertain how each jurisdiction determines whether an out-of- state crime is appropriately used as a predicate felony for purposes of their respective sentencing enhancement statutes. 19 defined as felonies in their state. Those states include: Arizona (A.R.S. §13-703---a person convicted in any court outside the jurisdiction of Arizona of an offense that was punishable by that jurisdiction as a felony is subject to sentence enhancement); Idaho (I.C. §19-2514---enhancement appropriate when the prior convictions were had within the state of Idaho or were had outside the state of Idaho); Indiana (IC 35-50-2-8 [In effect 7/1/14]---enhancement appropriate when the prior felony conviction is a conviction in any jurisdiction at any time where the convicted person might have been imprisoned for more than one year); Iowa (I.C.A. §902.8---enhancement appropriate if the prior offense is defined as a felony by the law under which the person is convicted, and it is classified as one at the time of the person’s conviction in Iowa); Kentucky (KRS 532.080 [1]---a previous felony conviction can be used for enhancement purposes when it is a felony in Kentucky or any other jurisdiction provided the sentence imposed was of one year or more); Mississippi (Miss. Code Ann. §99-19-81---enhancement appropriate when prior felony was committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of one year could have been imposed); Montana (MCA 46-18-501---enhancement appropriate when prior felony was committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of one year 20 could have been imposed); Nebraska (Neb.Rev.St. §29-2221--- enhancement is permitted for individuals convicted of a crime and twice previously convicted of a crime in any other state or the United States for terms of not less than one year each); Nevada (N.R.S. 207.010---enhancement permitted when the prior crime is one that Nevada would recognize as a felony); New Mexico (N.M.S.A. 1978, §31-18-17---enhancement is appropriate when the prior convictions are rendered in a court by any state, the United States, a territory of the United States, or the Commonwealth of Puerto Rico; or the offense was punishable by a term of imprisonment of more than one year; the offense would have been classified as a felony in New Mexico at the time of conviction); Rhode Island (Gen.Laws 1956, §12-19-21--- enhancement permitted when underlying felonies occur in Rhode Island or any other state to serve a term in prison); South Dakota (SDCL §22-7-7---enhancement permitted when defendant was convicted of one or two prior felonies under the laws of South Dakota or any other state or the United States); West Virginia (W.VA. Code §61-11-1, 61-11-18---enhancement appropriate for a person who has been twice before convicted in the United States of a crime punishable by confinement in a penitentiary); and Wyoming (W.S. 1977 §6-10-201---enhancement appropriate when defendant is convicted of a felony, a crime punishable by more than one year, in Wyoming or elsewhere). 21 Twenty-one (21) states, however, do not follow the New York Legislature’s relinquishment of its responsibility to define a qualifying felony offense. Those states include: Alabama (Ala. Code 1975 §13A-5-9 (b); Skinner v. State, 987 So.2d 1172 [Court of Criminal Appeals of Alabama; 2006]---in determining whether an out-of-state conviction will be used to enhance punishment, the conduct upon which the foreign conviction is based must be considered, and not the foreign jurisdiction’s treatment of that conduct); Arkansas (A.C.A. §5-4-501---the determination of whether a felony conviction from another jurisdiction is comparable to an enumerated felony involving violence under Arkansas criminal law lies within the discretion of the trial judge at the time of sentencing; California (Penal Code §667; People v. Woodell, 17 Cal.4th 448, 452 [Supreme Court of California; 1998]---in order for a prior conviction from another jurisdiction to qualify as a “strike” under the “three strikes” law, it must involve the same conduct as would qualify as a strike in California); Colorado (C.R.S.A §18-1.3-801---prior out-of-state conviction is considered a felony if the crime committed would also be a felony in Colorado); Delaware (11 Del.C. §4214; Fletcher v. State, 409 A.2d 1254, 1255 [Supreme Court of Delaware, 1979]---in order to qualify as a predicate offense, the conduct leading to an out-of-state judgment must be such that it would have supported a conviction for the 22 appropriate predicate offense in Delaware); Florida (F.S.A §775.084; Johnson v. State, __So.3d__ [Fourth District Court of Appeal of Florida; 2014]---prior out-of-state conviction qualifies as a felony for purposes of the habitual offender statute if it passes the “substantial similarity” test, which determines whether the elements of the respective crimes are analogous); Georgia (Ga. Code Ann., §17-10-7 (a)---prior out-of- state conviction qualifies as a felony if the crime committed would also be a felony in Georgia); Kansas (K.S.A. §21-6706--- prior out-of-state conviction must have a “comparable” Kansas felony to qualify as a felony offense for purposes of sentence enhancement); Louisiana (LSA-R.S. §15:529.1---prior out-of-state conviction qualifies as a felony if the crime committed would also be a felony in Louisiana); Michigan (M.C.L.A. §769.12--- prior out-of-state conviction qualifies as a felony if the crime committed would also be a felony in Michigan); New Jersey (N.J.S.A. 2C:43-7.1---the violation of any similar statute in the United States will count as a “strike”); North Carolina (N.C.G.S.A. §15A-1340.14---State must prove by a preponderance of the evidence that an out-of-state offense is substantially similar to an offense in North Carolina); Oklahoma (21 Okl.St.Ann. §54---enhancement permitted if the underlying out- of-state crime would be punishable by imprisonment in a penitentiary in Oklahoma; Fischer v. State, 483 P.2d 1165 [Court 23 of Criminal Appeals of Oklahoma, 1971]---permitting the use of a Colorado conviction where the offense was a penitentiary offense by Oklahoma definition; Pennsylvania (42 Pa. C.S.A. §9714 [a] [2]---prior out-of-state conviction qualifies as a “strike” if there is an equivalent crime in Pennsylvania in effect at the time of the commission of that offense); South Carolina (Code 1976 §17-25-45---prior out-of-state conviction qualifies as a conviction for a “serious offense” if it is classified as a series offense under South Carolina law); Tennessee (T.C.A. §40- 35-107---out-of-state convictions can be used to enhance a sentence if committed in Tennessee the offense would be recognized by law, in the event that an out-of-state felony is not such a felony in Tennessee the elements of the offense shall be analyzed by the court to determine what classification the offense should be given); Texas (V.T.C.A., Penal Code §12.42--- an out-of-state conviction qualifies as a conviction if it contains elements that are substantially similar to the elements of an offense defined in Texas law); Vermont (§13 V.S.A. §11--- prior out-of-state conviction qualifies as a felony if the crime committed would also be a felony in Vermont); Virginia (VA Code Ann. §19.2-297.1 (A); Dean v. Commonwealth, 61 Va.App. 209 [Court of Appeals of Virginia; 2009]---an out-of-state conviction may be considered a conviction if it is “substantially similar” to violent crimes defined by Virginia 24 law; and Washington (RCWA 9.94A.570---prior out-of-state conviction qualifies as a “most serious offense” if the offense is defined as such in Washington). These states often use a test which requires that the prior crime of which a defendant is convicted include all the essential elements of a felony in their state, as New York does, when determining whether a prior offense can serve as a predicate in defining an individual as a Second Felony Offender (Penal Law §70.06 [1] [b] [i]; People v. Ramos, 19 N.Y.3d 417, 419 [2012]). While, as demonstrated above, the movement across the United States appears to be reducing the harsh nature of sentencing enhancement laws (see California’s Proposition 36 which mandated that a “third strike” must be a serious or violent felony), New York retains one of the harshest Persistent Felony Offender statutes in the Country. Appellant’s determination as a Persistent Felony Offender, despite not being convicted of two New York felonies, is precisely the type of case that provides this Court the opportunity to ensure that, at the very least, Penal Law §70.10 can only be constitutionally utilized where a defendant has been convicted of two prior New York felonies. Therefore, it is respectfully submitted that appellant’s Persistent Felony Offender sentence is contrary to the law, 25 should be vacated, and the matter remitted for resentencing (Blanchard, 288 N.Y. at 147-158; Breckner, 179 A.D.2d at 410; Sasso, 176 A.D.2d at 410; Trudo, 153 A.D.2d at 994; Gil 109 A.D.2d at 420-421). CONCLUSION APPELLANT’S PERSISTENT FELONY OFFENDER STATUS SHOULD BE SET ASIDE, AND APPELLANT 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: July 10, 2014