THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
FRANKLYN MONTILLA, Appellant.
Court of Appeals of the State of New York.
*664 Kaye Scholer LLP, New York City (Daniel R. Alonso, Craig M. Cepler and Peter B. Silverman of counsel), and Criminal Appeals Bureau, Legal Aid Society (Steven Banks and John Schoeffel of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York City (Martin J. Foncello and Alan Gadlin of counsel), for respondent.
Chiеf Judge KAYE and Judges GRAFFEO, SMITH, PIGOTT and JONES concur; Judge CIPARICK taking no part.
OPINION OF THE COURT
READ, J.
On March 12, 2004, defendant Franklyn Montilla pleaded guilty to the crime of assault in the third degree (Penal Law *665 § 120.00). A month later, on April 13, 2004before sentencing had been imposed for the assaultdefendant was arrested for swinging a machete in the presence of police officers. As a result of this incident, he was subsequently indicted for one count of third-degree criminal possession of a weapon (Penal Law § 265.02 [1]) and one count of second-degree menаcing (Penal Law § 120.14 [1]).
A person is guilty of criminal possession of a weapon in the third degree when "[he] commits the crime of criminal possession of a weapon in the fourth degree as defined in" certain subdivisions of section 265.01 of the Penal Law, and "has been previously convicted of any crime" (Penal Law § 265.02 [1] [emphasis added]). Defendant contended that there was insufficient evidence to support the count of third-degree criminal possession of a weapon because a "conviction" for purposes of Penal Law § 265.02 (1) requires the imposition of sentence prior to commission of this offense.
At defendant's bench trial on August 10, 2004, Supreme Court rejected the claim of legal insufficiency and rendered a guilty verdict. Stating that "the issue ... is whether the defendant's plea of guilty constituted a conviction for the purpose of elevating... what would have been a misdemeanor[] possession of a weapon to a felony," the trial judge concluded that it was. For support, he looked to our decision in People v Carter (
Upon defendant's appeal, the Appellate Division unanimously affirmed his conviction, citing our decisions in both Carter and Matter of Gunning v Codd (
The Penal Law does not define the term "convicted," but Criminal Procedure Law § 1.20 (13) does: "`Conviction' means the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument." Seсtion 1.20 also separately defines the terms "sentence" and "judgment":
*666 "14. `Sentence' means the imposition and entry of sentence upon a conviction.
"15. `Judgment.' A judgment is сomprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence."
The purpose of fоrmulating these three separate definitions was to clear up the meaning of the term "conviction," which, under prior law, "[f]or some purposes ... meant the plea or verdict, but for many others ... meant the judgment, as evidenced by the imposition of sentence" (see Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 1.20, at 28).
Dеfendant asserts, however, that notwithstanding these definitions in the Criminal Procedure Law, the phrase "previously convicted" in Penal Law § 265.02 (1) must encompass both an adjudicаtion of guilt by plea (as in his case) or verdict and imposition of sentence. He offers two related reasons to support his position: first, that Penal Law § 265.02 (1) is, or at leаst is the functional equivalent of, a recidivist sentencing statute, and these statutes historically have required sentencing before a criminal adjudication was deemеd a prior conviction; second, in light of this history, the courts should not borrow from the Criminal Procedure Law and thereby apply a procedural definition to a matter of substantive criminal law.
But section 265.02 (1) is not, as defendant suggests, a recidivist sentencing statute. He cites nothing in the statute's legislative history to show that it is, and the structure of the Penal Law cuts against his argument. That is, section 265.02 (1) is found within part three of the Penal Law, which lists all the "Specific Offenses." The sentencing scheme is contained within part two, where Penal Law §§ 70.04, 70.06, 70.08 and 70.10 dictate the sentences authorized for repeat offenders.
Nor is there any reason to consider section 265.02 (1) to be functionally equivalеnt to the recidivist sentencing statutes. These laws reflect the notion "that enhanced punishment not be imposed unless the chastening effect of sentence on thе prior conviction [precedes] commission of the latest crime" (People v Morse,
In addition, regardless of any historical understanding of the word "conviction" in recidivist statutes, the Legislature has not defined this term in the current recidivist sentencing scheme as anything other than what it means under the Criminal Procedure Law: a plea or verdict. For example, Penal Law § 70.06 provides that a "prior conviction" can serve as a "predicate felony conviction" where, among other things, "[s]entence upon such prior conviction [had] been imposed before commission of the present felony" (§ 70.06 [1] [b] [ii]). By contrast, Penal Law § 265.02 (1) requires that a defendant must have been "previously convicted of any crime" without similarly specifying that sentencing upon the prior conviction must have been imposed bеfore commission of the present crime.
Finally, in Gunning we made clear that the Criminal Procedure Law's definition of "conviction" was properly imported into other stаtutes. There, a police officer who was found guilty by a jury of official misconduct and second-degree bribe receiving attempted to obtain pension benefits by retiring prior to the entry of judgment on the verdict. The officer conceded that under Public Officers Law § 30, the Police Commissioner had the authority to dismiss "a member of the Pоlice Department convicted of a crime by a court of competent jurisdiction" (
We disagreed. We observed that "[t]he former Code of Criminal Procedure cоntained no definition of `conviction'" and "[a]ccordingly, courts gave the term a chameleon-like quality, designed to meet what were perceived to be the equities of diverse cases before them" (id.). We went on to state that "[h]owever amorphous the term `conviction' may have been under prior law, any confusiоn was laid to rest with the enactment of the CPL in 1971" (id. at 499)that "[w]hatever may *668 have been the rule previously, the CPL ... provide[d] that a conviction occurs upon a verdict of guilty ... and no sound reason exists to differentiate between a conviction for purposes of criminal law and the Public Officers Law" (id. at 498 [citation omitted]).
Criminal Procedure Law § 1.20 (13) thus embodies the Legislature's decision to give the term "conviction" a definitive meaning so that the confusion reigning under prior law might be "laid to rest." "[W]hen a statute [here, the Penal Law] does not define a рarticular term, it is presumed that the term should be given its precise and well settled legal meaning in the jurisprudence of the state" (People v Duggins,
Accordingly, the order of the Appellate Division should be affirmed.
Order affirmed.