THIS WAS NOT A CIRCUMSTANCE WHERE THE ACCUSATORY INSTRUMENTS, AS OPPOSED TO THE LANGUAGE OF THE FLORIDA STATUTE ALONE, CAN BE USED TO DETERMINE WHETHER THE FLORIDA CONVICTION ALLOWED DEFENDANT TO BE SENTENCED AS A SECOND CHILD SEXUAL ASSAULT FELONY OFFENDER; THE FLORIDA STATUTE SHOULD NOT HAVE BEEN DEEMED A PREDICATE FELONY (FOURTH DEPT). ​

The Fourth Department, reversing County Court, determined defendant’s Florida conviction could not serve as a predicate felony allowing defendant to be sentenced as a second child sexual assault felony offender. This was not a circumstance where the underlying accusatory instruments, as opposed to the language of the Florida statute, can be the basis of a predicate-felony analysis. The appellate division’s analysis is comprehensive and too detailed to fairly summarize here:

We agree with defendant that consideration of the facts and circumstances of the underlying Florida conviction is impermissible in this case … . “[U]nder a narrow exception to the [general] rule, the underlying allegations must be considered when ‘the foreign statute under which the defendant was convicted renders criminal several different acts, some of which would constitute felonies and others of which would constitute only misdemeanors [or no crime] if committed in New York’ ” … . “In those circumstances, the allegations will be considered in an effort to ‘isolate and identify’ the crime of which the defendant was accused, by establishing ‘which of those discrete, mutually exclusive acts formed the basis of the charged crime’ ” … . * * *

… [W]e conclude that “[b]ecause the [Florida] statute, itself, indicates that a person can be convicted of the [Florida] crime without committing an act that would qualify as a felony in New York (i.e., by [instead committing the misdemeanor of sexual misconduct]), defendant’s [Florida] conviction for [lewd or lascivious battery] was not a proper basis for a predicate felony offender adjudication” … . People v Gozdziak, 2022 NY Slip Op 07377, Fourth Dept 12-23-22

Practice Point: Here the Florida statute, and not the accusatory instruments in the Florida prosecution, is the only proper basis for the predicate-felony analysis. The Florida statute should not have served as a predicate felony to allow defendant to be sentenced as a second child sexual assault felony offender.