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People v. Helms

New York Court of Appeals

November 20, 2017

The People & c., Appellant,
v.
Marlo S. Helms, Respondent.

          Leah R. Mervine, for appellant.

          David R. Juergens, for respondent.

          FAHEY, J.

         On this appeal we must determine whether defendant's Georgia conviction for burglary (Ga Code Ann former § 16-7-1 [a]) qualifies as a predicate felony conviction under New York's sentencing statutes. We also are called upon to clarify the scope of the strict equivalency test, that is, the test by which a reviewing court determines whether a prior conviction in another jurisdiction may serve as a predicate felony conviction for sentencing purposes in this jurisdiction.

         The strict equivalency test allows a reviewing court to examine the foreign statute that a defendant has been convicted of violating, as well as any foreign statute or case law that informs the interpretation of the foreign code breached by the defendant. Applying that test to the facts of this case, we conclude that the Georgia conviction for burglary is equivalent to a violent felony in New York. Defendant was properly sentenced as a second violent felony offender based upon that previous conviction. We therefore reverse the order insofar as appealed from and reinstate defendant's sentence as a second violent felony offender.

         Facts

         In June 2012 defendant was the subject of a traffic stop in Rochester. In the course of that stop, police discovered that defendant was in possession of a loaded firearm. Defendant was charged with one count of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Defendant eventually pleaded guilty to attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]), a class D violent felony (Penal Law § 70.02 [1] [c]), in satisfaction of that charge.

         During the sentencing stage of those proceedings, the parties disputed whether defendant must be punished as a second violent felony offender based on his 1999 Georgia conviction for burglary (Ga Code Ann former § 16-7-1 [a]). The trial court determined that the Georgia conviction qualified defendant as a second violent felony offender, and it sentenced him accordingly, imposing a determinate term of five years' incarceration to be followed by five years of postrelease supervision.

         On appeal, a divided Appellate Division concluded that "defendant... was improperly sentenced as a second violent felony offender inasmuch as the predicate conviction, i.e., the Georgia crime of burglary, is lacking an essential element required by the equivalent New York statute" (People v Helms, 141 A.D.3d 1138, 1138 [4th Dept 2016]) [1]. The Appellate Division majority posited that "the inquiry into whether a foreign state's conviction should be used as a predicate [for the purpose of sentencing a defendant as a multiple felony offender generally] is limited to '"a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes'" (id. at 1139, quoting People v Jurgins, 26 N.Y.3d 607, 613 [2015], itself quoting People v Muniz, 74 N.Y.2d 464, 467-468 [1989]). Based upon its belief that this Court has "mandated" a "direct comparison of the elements of the crimes" (141 A.D.3d at 1140), the Appellate Division ruled that the Georgia conviction is not the equivalent of a New York violent felony because, unlike the corresponding New York burglary statute (Penal Law § 140.25 [2] [burglary in the second degree]; see Penal Law § 70.02 [1] [b] [characterizing burglary in the second degree as a class C violent felony]), the subject Georgia code (Ga Code Ann former § 16-7-1 [a]) does not specify that a defendant must know that the entry or decision to remain is unauthorized (see 141 A.D.3d at 1140). In so ruling, the Appellate Division did not look beyond the Georgia statute (Ga Code Ann former § 16-7-1 [a]) to determine whether the crime of burglary in Georgia required proof of a culpable mental state. [2]

         The Appellate Division dissenter would have affirmed the judgment on the ground that there is "no substantive difference between the burglary statutes in New York and Georgia, " meaning that the Georgia conviction may serve as predicate for enhanced sentencing (141 A.D.3d at 1143). That review was based upon both the Georgia statute criminalizing burglary (Ga Code Ann former § 16-7-1 [a]) and additional Georgia statutes that establish "principles of criminal liability and culpability" therein (141 A.D.3d at 1143). The Appellate Division dissenter subsequently granted the People leave to appeal to this Court (28 N.Y.3d 939');">28 N.Y.3d 939 [2016]).

         The Strict Equivalency Test

          "Penal Law § [70.04] requires the imposition of enhanced sentences for those found to be predicate [violent] felons" (Muniz, 74 N.Y.2d at 467). Subdivision (1) (b) of that section provides, in pertinent part, that a prior out-of-state conviction qualifies as a predicate violent felony conviction if it involved "all of the essential elements of any [violent] felony for which a sentence to a term of imprisonment in excess of one year was authorized and is authorized in this state."

         In this context we have "applied a strict equivalency standard that examines the elements of the foreign conviction to determine whether the crime corresponds to a New York felony, usually without reference to the facts giving rise to that conviction" (Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d 745, 750-751 [2007]). "As a general rule, " this test limits the inquiry of a reviewing court "to a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes" (People v Ramos, 19 N.Y.3d 417, 419 [2012] [internal quotation marks omitted]) [3]. In that regard, we have held that a reviewing court "may not consider the allegations contained in the accusatory instrument underlying the foreign conviction" (Jurgins, 26 N.Y.3d at 613).

         At bottom, the strict equivalency test protects from the imposition of a predicate felony offender sentence based on the mere accusations underlying the foreign conviction - allegations, of course, of which a defendant may not have been convicted (see generally North, 8 N.Y.3d at 750-751). That standard does not mean that a reviewing court may look to only the foreign statute a defendant has been convicted of violating in determining whether such defendant may be sentenced as a predicate felony offender. Indeed, we have specifically explained that, in that analysis, a reviewing court may consider "the statutes" that "defin[e] the relevant crimes" (Jurgins, 26 N.Y.3d at 613; see People v Gonzalez, 61 N.Y.2d 586, 589-590 [1984]), much as we have said that a reviewing court may rely upon case law of a foreign jurisdiction to confirm that court's interpretation of a foreign statute (see Jurgins, 26 N.Y.3d at 613 n 3 [noting that, in some instances, "it is necessary for a court to refer to the law of another state, " including case law, "to ensure lawful sentencing"]; id. at 614 [explaining that "(o)ur reading of the statute (there in question) was consistent with that of the ...


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