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GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY.

The Fourth Department, over an extensive dissent, reversing County Court, determined defendant’s Georgia burglary conviction could not serve as a predicate felony in New York. The corresponding New York burglary statute required that a defendant knowingly enter or remain in a building with the intent to commit a crime. The knowledge element was not part of the Georgia statute:

Defendant pleaded guilty to burglary in 1999, at which time the Georgia burglary statute provided that “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another” (Ga Code Ann former § 16-7-1 [a]). The equivalent New York burglary statute provides that “[a] person is guilty of burglary . . . when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when . . . [t]he building is a dwelling” (Penal Law § 140.25 [2] [emphasis added]). Thus, on its face, the Georgia statute is lacking an essential element—knowledge that the entry or decision to remain is unlawful. Because New York law requires proof of an element that Georgia law does not, defendant’s Georgia conviction cannot serve as a predicate … . People v Helms, 2016 NY Slip Op 05463, 4th Dept 7-8-16

CRIMINAL LAW (GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)/SENTENCING (PREDICATE FELONY, GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)/SECOND FELONY OFFENDER (GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)

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