Predicate Felonies: Equating Out Of State Convictions With New York Penal Law Reviewed by Stephen N. Preziosi on .
Issue: Whether an out of state conviction for attempted robbery is the equivalent of a felony in New York and provide the basis for second felony offender status. ?
Holding: The Court of Appeals held that the only element of the second felony offender statute at issue is whether the D.C. conviction is the equivalent of a New York felony, a matter which the People bore the burden of establishing (see People v Yancy, 86 NY2d 239, 247 ). A prior out of state conviction qualifies as a predicate felony conviction if it involved an offense for which a sentence to a term of imprisonment in excess of one year was authorized and is authorized in this state (Penal Law 70.06  [b] [i]). Because New York authorizes a prison sentence of more than one year only for felonies, we must determine whether defendant's foreign conviction is equivalent to a New York felony (People v Ramos, 19 NY3d 417, 419 ; People v Muniz, 74 NY2d 464, 467 ; People v Gonzalez, 61 NY2d 586, 592 ).
Facts: Defendant pleaded guilty to the top count of robbery in the first degree. Pursuant to the plea offer, defendants guilty plea was in exchange for a promised sentence of 11 years in prison, plus five years of post-release supervision. The plea included treating defendant as a second felony offender. During the plea colloquy, the county clerk read a second felony information based on a 2000 Washington, D.C. conviction (the D.C conviction) for attempted to commit robbery, and advised defendant that he could challenge in on two grounds: that he was not the person named, or that the conviction was unconstitutionally obtained. Defendant did not challenge the prior conviction and Supreme Court adjudicated him as a second felony offender.
Defendant moved pursuant to a CPL 440.20 to set aside his sentence on the grounds that he was unlawfully sentenced as a second felony offender. Defendant asserted in his motion that he had agreed to the plea on the mistaken assumption that he was a second felony offender, as there was no discussion of how or whether the D.C conviction was equivalent to a felony in New York; that was denied. The Appellate Division held defendants argument without merit and the Court of Appeals granted leave to appeal.
A prior out of state conviction qualifies as a predicate felony conviction if it involved an offense for which a sentence to a term of imprisonment in excess of one year was authorized and is authorized in this state, Penal Law 70.06[b][i]. Because New York authorizes a prison sentence of more than one year only for felonies, the Court held that they must determine whether defendants foreign conviction is equivalent to a New York felony, People v Ramos, 19 NY3d 417, 419 .
The D.C statute underlying defendants prior conviction provides that, whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery, (DC ST 22-2801; DC ST 22-2802 (attempt to commit robbery).
In New York, robbery is defined as forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he or she uses or threatens the immediate use of physical force upon another person to prevent resistance to the taking or to compel the owner to deliver up the property, Penal Law 160.00.
The Court of Appeals held that they 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. Defendants D.C conviction for attempt to commit robbery was not a proper basis for a predicate felony offender adjudication. The illegal determination that defendant is a second felony offender must therefore, be vacated and the matter remitted for further proceedings pursuant to CPL 440.20.
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