People v. Jones

Appellate Division of the Supreme Court of the State of New York

Sep 27, 2013

Versions:109 A.D.3d 1108

971 N.Y.S.2d 595

[emphasis added]; see ).

Further, the legislative history of the persistent felony offender statute reflects that the drafters specifically considered and rejected the contention advanced by defendant (see Griffin, 156 F3d at 291). According to the drafters, “[u]nder 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 . . . 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 . . . 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” (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 [emphases added]).

Although defendant cites several cases from the Third Department that support his contention that foreign felonies used to support persistent felony offender status must have a New York equivalent (see People v Trudo, 153 AD2d 993, 994-995 [1989]; People v Gill, 109 AD2d 419, 420-422 [1985]; see also People v Morton, 48 AD2d 58, 59-60 [1975]), we decline to follow those cases. The Third Department cases trace back to Morton (48 AD2d at 59), in which that court held that a former version of the second felony offender statute—Penal Law § 70.06 (former [1] [b] [i])—was unconstitutional as applied to the defendant because it denied him equal protection and resulted in the delegation of legislative authority to other jurisdictions in violation of article III, § 1 of the New York State Constitution. That version of the statute provided in pertinent part that, “to be a predicate felony, a prior conviction in a jurisdiction other than New York must have been for an offense for which a term of imprisonment in excess of one year or a sentence of death was authorized, irrespective of whether such sentence was imposed” (Morton, 48 AD2d at 59-60; see People v Parker, 41 NY2d 21, 23 n 2 [1976]). The Third Department reasoned that the application of that definition would deprive defendants with prior out-of-state convictions of equal protection because, if those defendants were convicted of “unusual” or arcane crimes in other jurisdictions, such as vagrancy or blasphemy, the former version of the second felony offender statute would mandate second felony offender status for defendants later convicted of a New York felony (Morton, 48 AD2d at 60). According to the court, that result “would be purely arbitrary and without a basis in reason,” and the court noted that, “had defendant fortuitously performed these very same earlier acts in the State of New York, he would still be entitled to first offender status upon his sentencing for his subsequent New York felony conviction” (id.). The Third Department thus declared Penal Law § 70.06 unconstitutional “insofar as it provides that the extent of punishment for a convicted New York felon is dependent upon the authorized sentence for an offense of which he has previously been convicted in another jurisdiction” (id.).

After Morton, Penal Law § 70.06 was amended to include language requiring that the foreign predicate conviction must be for acts that would constitute a felony under New York law (L 1975, ch 784, § 1; see Parker, 41 NY2d at 27). Shortly thereafter, however, the Court of Appeals in Parker (41 NY2d at 24) effectively overruled Morton, holding that former subdivision (1) of section 70.06 of the Penal Law was constitutional as applied to the defendant, and that the amendment was not “constitutionally mandated” (id. at 27). Specifically, the Court of Appeals held that “the imposition of second felony offender status upon individuals convicted in other jurisdictions of crimes which in such other jurisdictions warrant [a] sentence of imprisonment in excess of one year is rationally related to the valid governmental aim of treating habitual offenders more severely than first time offenders” (id. at 25). The Court reasoned that “[t]he [L]egislature, in enacting the challenged provision, exercised its considered 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 . . . The possible disparity of treatment 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” (id. at 26).

In sum, under the clear and unambiguous language of Penal Law § 70.10 (1) (b) (i), a “previous felony conviction” for purposes of the persistent felony offender statute includes “a crime in any other jurisdiction, provided . . . that a sentence to a term of imprisonment in excess of one year . . . was imposed therefor.” Here, defendant was convicted in federal court of two crimes—knowingly making false statements on a Bureau of Alcohol, Tobacco & Firearms form (18 USC § 924 [a] [1] [A]) and being a convicted felon in possession of a firearm (18 USC § 922 [g])—and a sentence of imprisonment of 18 months was imposed for each conviction. Inasmuch as “defendant received a sentence in excess of one year on each of [the federal] convictions[,] they were properly considered for persistent felony offender adjudication” (Griffin, 168 AD2d at 972). We therefore affirm the denial of defendant‘s motion to set aside his sentence.

Present—Scudder, P.J., Peradotto, Carni, Valentino and Whalen, JJ.