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CONNECTICUT SEXUAL ASSAULT STATUTE IS BROADER IN ITS REACH THAN NEW YORK COUNTERPARTS AND THEREFORE CANNOT SERVE AS A PREDICATE FELONY IN NEW YORK.

The First Department, reversing Supreme Court, determined defendant should not have been sentenced as a second felony offender based on a Connecticut conviction for sexual assault. The court found the Connecticut statute was broader than its New York counterparts in both the “threat of harm,” and “accomplice liability” elements.  Therefore the violation of the Connecticut statute could not serve as a predicate felony in New York.

The New York statutes prohibit various sexual acts by forcible compulsion, which is defined (among other things) as the use of a threat “which places a person in fear of immediate death or physical injury [to someone] or in fear that [someone] will immediately be kidnapped” (Penal Law § 130.00[8]…). In contrast, CGSA § 53a-70(a)(1) does not contain any requirement that a threat issued to compel sexual intercourse must threaten immediate harm. Accordingly, the Connecticut statute is necessarily broader than its New York counterparts, and may not serve as a predicate offense … .

In addition, since CGSA § 53a-70(a)(1) is a general intent statute … , “the prosecution need not establish that the accused intended the precise harm or precise result which resulted from his acts” … . Accordingly, a conviction under the statute is warranted even if a rape committed by a person other than the defendant is the unintended result of the defendant's use or threatened use of force … . In contrast, New York law requires that in order to establish accessorial liability the People must establish that a defendant, acting with the mental culpability required for the commission of the crime at issue, either solicited, requested, commanded, importuned, or intentionally aided another in committing the crime (Penal Law § 20.00). Accordingly, the Connecticut statute is broader than its New York counterparts in this regard as well. People v Davis, 2016 NY Slip Op 01623, 1st Dept 3-8-16

CRIMINAL LAW (VIOLATION OF CONNECTICUT SEXUAL ASSAULT STATUTE CANNOT SERVE AS PREDICATE FELONY IN NEW YORK)/SENTENCING (VIOLATION OF CONNECTICUT SEXUAL ASSAULT STATUTE CANNOT SERVE AS PREDICATE FELONY IN NEW YORK)/SECOND FELONY OFFENDER STATUS (VIOLATION OF CONNECTICUT SEXUAL ASSAULT STATUTE CANNOT SERVE AS PREDICATE FELONY IN NEW YORK)

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Constructive Condition Precedent Properly Fashioned by Court

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