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THE FEDERAL DRUG CONVICTION WAS NOT THE EQUIVALENT OF A VIOLATION OF PENAL LAW 220.39 FOR SECOND-FELONY-OFFENDER PURPOSES; IT IS NOT CLEAR WHETHER THIS DECISION OVERRULED FIRST DEPARTMENT PRECEDENT, OR WHETHER A REVIEW OF THE FEDERAL ACCUSATORY INSTRUMENT WOULD HAVE DEMONSTRATED THE TWO OFFENSES WERE EQUIVALENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the federal drug conviction was not the equivalent of a violation of Penal Law 220.39, Therefore the federal conviction could not be the basis for second felony offender status. It is not clear whether this decision overruled other First Department decisions to the contrary, or whether a review of the federal accusatory instrument would demonstrate an equivalency:

Defendant was adjudicated a second felony offender based on a federal conviction for distribution and possession with intent to distribute cocaine under 21 USC § 841(a)(1). That provision is not equivalent to Penal Law § 220.39 because the federal crime has a broader knowledge element, requiring only that the defendant “knowingly or intentionally . . . possess with intent to . . . distribute . . . a controlled substance,” as opposed to having particular knowledge of the drug type actually possessed … . The cases in which this Court has upheld 21 USC § 841(a)(1) as the equivalent of a New York felony did not address this discrepancy in the breadth of the knowledge element; other equivalency issues were raised in those cases … . People v Campanioni, 2021 NY Slip Op 06105, First Dept 11-9-21

 

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