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THE COURT OF APPEALS CAN HEAR THE APPEAL OF AN UNPRESERVED SENTENCING ISSUE RAISED FOR THE FIRST TIME IN A MOTION TO VACATE THE SENTENCE; A FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT SERVE AS A PREDICATE FELONY, IRRESPECTIVE OF THE ACTUAL FACTS UNDERLYING THE FOREIGN CONVICTION.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a full-fledged dissenting opinion by Judge Pigott, determined the Court of Appeals could hear the appeal of an unpreserved sentencing issue first raised in a motion to vacate the sentence (Criminal Procedure Law 440.20) and further determined that a Washington DC robbery conviction should not have been deemed a predicate felony. Because the DC statute could be violated by “snatching” property from someone, an act which would not be felony robbery in New York, the Court of Appeals held it could not be the basis for defendant’s conviction as a second felony offender, irrespective of whether the actual facts underlying the DC conviction would constitute a felony in New York:

A CPL 440.20 motion is the proper vehicle for raising a challenge to a sentence as “unauthorized, illegally imposed or otherwise invalid as a matter of law” (CPL 440.20 [1]), and a determination of second felony offender status is an aspect of the sentence (see CPL 70.06 [included in CPL article 70, addressing sentences of imprisonment]). One of the legal defects that can be challenged in a CPL 440.20 motion is an alleged error in sentencing a defendant as a second or third felony offender, including the decision to consider certain prior convictions as predicates. Raising the predicate felony sentencing issue in a CPL 440.20 motion serves the goals and purposes of the preservation rule by permitting the parties to present their arguments on the issue in the trial court, creating a record for appellate review, and allowing the trial court the first opportunity to correct any error [FN3]. Thus, we may address defendant’s current challenge — that the sentence was illegal because the D.C. conviction did not render him a second felony offender — on the appeal of the denial of his CPL 440.20 motion to set aside the sentence. * * *

… [U]nder the D.C. statute the taking can occur (1) by force or violence, or (2) by putting in fear. The force or violence element can be accomplished (1) against resistance, or (2) by sudden or stealthy seizure, or (3) by snatching … . Stated another way, “the statute must be interpreted to include ‘stealthy seizure’ as a form of ‘force or violence'” … . The statutory language means that the crime can be committed in different ways, and the phrase “sudden or stealthy seizure or snatching” does not describe separate criminal acts required by the statute in addition to the use of “force or violence” … . Consequently, we do not look at the underlying accusatory instrument to determine if the crime is equivalent to a New York felony … . Because the statute, itself, indicates that a person can be convicted of the D.C. crime without committing an act that would qualify as a felony in New York (i.e., by pickpocketing), defendant’s D.C. conviction for attempt to commit robbery was not a proper basis for a predicate felony offender adjudication … . People v Jurgins, 2015 NY Slip Op 09311, CtApp 12-17-15

CRIMINAL LAW (APPEAL OF UNPRESERVED SENTENCING ISSUE LIES FROM DENIAL OF A MOTION TO VACATE THE SENTENCE)/CRIMINAL LAW (FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT BE THE BASIS OF A PREDICATE FELONY)/APPEALS (CRIMINAL LAW, APPEAL OF UNPRESERVED SENTENCING ISSUE LIES FROM DENIAL OF A MOTION TO VACATE THE SENTENCE)/PREDICATE FELONY (A FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT BE THE BASIS FOR A PREDICATE FELONY)/FOREIGN FELONY (A FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT BE THE BASIS FOR A PREDICATE FELONY)

Elements of Florida “Theft” Statute and New York Larceny Statutes Are Different—Florida Conviction Cannot Serve as a Predicate Felony in New York

The Third Department, using its “interest of justice” review power, determined defendant’s Florida conviction could not serve as a predicate felony in New York because the relevant Florida statute included an element not included in the relevant New York statute:

Here, the information contained with the second felony offender notice indicates that, in 2001, defendant was convicted in Florida of a felony “theft” in the third degree (see Fla Stat Ann § 812.014). Under the applicable Florida penal statute, it is a crime to “knowingly obtain[] or use[], or endeavor[] to obtain or to use, the property of another with intent to, either temporarily or permanently . . . [d]eprive the other person of a right to the property or a benefit from the property . . . [or a]ppropriate the property to his or her own use or to the use of any person not entitled to the use of the property” (Fla Stat Ann § 812.014 [1] [a], [b] [emphasis added]). In comparison, New York’s larceny statutes do not contain analogous language with regard to mere temporary deprivations or appropriations (see Penal Law §§ 155.00 [3], [4]; 155.05 [1]…). Thus, the Florida crime undoubtedly contains an element that is not included in New York’s larceny offenses and, as a result, the Florida conviction is not sufficiently analogous to a New York felony to serve as a predicate felony for purposes of Penal Law § 70.06 … . People v Parker, 2014 NY Slip Op 07021, 3rd Dept 10-16-14

 

Out of State Conviction of then 15-Year-Old Could Not Serve as Basis for Second Felony Offender Sentence

The Court of Appeals determined that the defendant’s Pennsylvania conviction for third degree murder (when the defendant was 15) could not serve as the basis for a second felony offender sentence.  In so finding, the court noted that the error did not need to be preserved for the Court of Appeals to reach it:

As an initial matter, we conclude that this case falls within the narrow exception to our preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the trial record … . * * *

Penal Law § 30.00 (1) specifies that a person must be at least 16 years old to be criminally responsible for his conduct.  Penal Law § 30.00 (2) lists crimes that are exceptions to this age requirement, but second-degree manslaughter is not among them.  So assuming as we must for purposes of this appeal that third-degree murder in Pennsylvania is equivalent to second degree manslaughter in New York, defendant’s Pennsylvania conviction was not a predicate felony conviction within the meaning of Penal Law § 70.06 (b) (i) because he could not even have been prosecuted for second-degree manslaughter in New York at the age of 15.  People v Santiago, 159, CtApp 10-15-13

 

Persistent Felony Offender Statute Does Not Require Prior Felonies to be Equivalent to New York Felonies

The Fourth Department determined that the persistent felony offender statute did not require that the prior felonies taken into consideration for persistent felon status be equivalent to New York felonies:

The persistent felony offender statute … contains no language requiring that the underlying out-of-state conviction be for a crime that would constitute a felony in New York, i.e., “an offense for which a sentence to a term of imprisonment in excess of one year may be imposed” (Penal Law § 10.00 [5]), or that the elements of the foreign crime be equivalent to the elements of a New York crime (see § 70.10 [1] [b] [i]).  Rather, as noted by the Second Circuit in upholding the constitutionality of the persistent felony offender statute, “[s]ection 70.10 (1) (b) does not distinguish among felony convictions that arise under federal, New York State, or out-of-state law.  Thus, if the acts constitute a felony under federal or another state’s law, they will be deemed a felony for purposes of persistent offender status under [s]ection 70.10 even if there is no counterpart felony in New York law.  By contrast, under [s]ection 70.06 [the second felony offender statute], the underlying acts of a federal or out-of-state felony must be recognized as a felony in New York to qualify as a predicate felony” … .  People v Jones, 853, 4th Dept 9-27-13

 

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