People v Yusuf

[*1] People v Yusuf 2009 NY Slip Op 50311(U) [22 Misc 3d 1127(A)] Decided on February 26, 2009 Supreme Court, New York County Conviser, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 5, 2009; it will not be published in the printed Official Reports.

Decided on February 26, 2009
Supreme Court, New York County

The People of the State of New York

against

Malik Yusuf, Also Known As, Yusuf Malik Ashford, Defendant.



370-2008



Bridget Brennan, Special Narcotics Prosecutor of the City of New York, (Michele Molfetta of counsel), for the People.

Andrew Freifeld, New York City, for defendant.

Daniel P. Conviser, J.

Defendant was convicted after a jury trial in this Court of one Count of Criminal Possession of a Controlled Substance in the Third Degree, in violation of § 200.16 of the Penal Law, a Class B felony, one count of Criminal Possession of a Controlled Substance in the Fourth Degree in violation of § 220.09 of the Penal Law, a Class C felony and one count of Criminally Using Drug Paraphernalia in the Second Degree pursuant to § 220.50 of the Penal Law, a Class A misdemeanor.

Prior to sentencing, the People filed and served on Defendant two statements of predicate felony conviction. The first alleges that the Defendant was convicted on September 30, 1996 in the Superior Court of Guilford County in the State of North Carolina of the offense of Robbery with a Dangerous Weapon. It is also alleged that the ten year time period within which a predicate felony conviction must have occurred in order for that conviction to enhance an offender's sentence, (See Penal Law § 70.06 [1] [b] [5]) is extended with respect to this conviction because Defendant was incarcerated in North Carolina on that conviction from October 9, 1996 until September 24, 2001. The People allege that this prior conviction qualifies as a "violent felony offense" for purposes of sentencing.

The second statement of predicate felony conviction alleges that the Defendant was convicted on the same date in the same court of Possession with Intent to Sell and Deliver a Controlled Substance. This statement also alleges that the ten year time period provided by the Penal Law for predicate felony convictions is likewise extended by the same term of incarceration referenced supra. Defendant has moved on various grounds for an order declaring that neither of these statements of predicate felony conviction can be used as a basis to find that the Defendant is a Second Felony drug offender who is subject to an enhanced sentence by virtue [*2]of having suffered a prior violent felony or prior non-violent felony conviction.

For the reasons stated below, the Court finds that Defendant's prior conviction in North Carolina for Robbery with firearms or other dangerous weapons appears to make the Defendant a Second felony drug offender with a prior violent felony offense pursuant to Penal Law § 70.71 (4). In light of this determination, the Court has not considered or ruled upon the arguments of the parties with respect to the statement of predicate felony conviction filed by the People alleging that the Defendant was previously convicted of Possession with Intent to Sell and Deliver a Controlled Substance because any determination with respect to that statement would have no effect on Defendant's sentencing parameters here.

CONCLUSIONS OF LAW

Defendant argues first that although Penal Law § 70.70 (4) authorizes a specific enhanced sentencing range for felony drug offenders whose prior convictions are for violent felony offenses, that prior violent felony sentencing range authorization does not include cases where a defendant's prior alleged violent felony offense occurred in a foreign jurisdiction. Defendant notes that the language of this provision states that "[t]his subdivision shall apply to a second felony drug offender whose prior felony conviction was a violent felony." Penal Law § 70.70 (4) (a). The authorized enhanced sentence is then provided, again, for those with a prior "violent felony" conviction. Penal Law § 70.70 (4) (b).

Penal Law § 70.70 (1) (c) provides that a "violent felony" "shall have the same meaning as provided by subdivision one of section 70.02 of this article." Penal Law § 70.02 provides that a "violent felony offense" consists of any one of a number of New York state felonies. The statute does not mention or allude in any respect, however, to convictions for similar crimes in foreign jurisdictions. Defendant argues, simply, that because the statute by its plain terms does not subject an offender with a prior violent felony conviction in a foreign jurisdiction to the special enhanced sentences applicable to drug offenders with prior violent felony convictions under New York law, the Court is powerless to read such an authorization into the statute.

With respect to the literal language of the Penal Law, Defendant's argument is further strengthened, in the Court's view, by the fact that in other closely related provisions of the Penal Law where a prior violent felony or prior felony may serve to enhance the sentence of a convicted felony offender, the statute specifically indicates that prior convictions in foreign jurisdictions may satisfy the predicate felony requirement. Put another way, where the Legislature intended to include prior convictions in foreign jurisdictions as a means to enhance the sentences of current felony offenders, it has consistently done so by explicitly providing that authority.

Penal Law § 70.04 authorizes enhanced sentences for violent felony offenders with a prior violent felony conviction. Unlike the statute at issue here, Penal Law § 70.04 explicitly provides that convictions in another jurisdiction may qualify as predicate felony convictions if the appropriate criteria are met. See Penal Law § 70.04 (1) (b) (I). The provisions of Penal Law § 70.04 allowing prior violent felony convictions from other jurisdictions to enhance sentences are also incorporated by reference in the authorization for enhanced sentences for "Persistent Violent Felony Offenders" (Penal Law § 70.08, outlining sentences for offenders with two or more prior violent felony convictions).

Similarly, Penal Law § 70.06 authorizes enhanced sentences for "Second Felony [*3]Offenders" with predicate felony convictions and specifically authorizes appropriate prior convictions in other jurisdictions to qualify as predicate felonies. See Penal Law § 70.06 (1) (b) (I). The provisions of Penal Law § 70.06 authorizing the use of predicate felony convictions from other jurisdictions to enhance sentences are incorporated by reference in the sentencing structure for "Child Sexual Assault Felony Offenders" (Penal Law §70.07). The provisions of Penal Law §§ 70.04 & 70.06 providing that foreign convictions may be used to determine whether an offender is a predicate felony or predicate violent felony offender are likewise incorporated by reference in the definition of a "predicate felony sex offender" (Penal Law § 70.80 [1] [c]).

Provisions authorizing discretionary life sentences for "Persistent Felony Offenders" (felony offenders with two or more prior qualifying felony convictions) also contain specific language authorizing that sentence enhancement in cases where one or more prior convictions occurred in a foreign jurisdiction. See Penal Law § 70.10 (1) (b). Provisions for sentencing drug offenders with prior felony convictions (but not prior violent felony convictions) include language authorizing sentences to be enhanced for prior qualifying convictions in other jurisdictions. Penal Law § 70.70 (2) defines a "Second felony drug offender" eligible for enhanced sentences by reference to the criteria provided in Penal Law § 70.06 (1), referenced supra, authorizing prior convictions in foreign jurisdictions to be used to enhance non-drug law sentences in appropriate cases. In sum, while numerous provisions of the Penal Law explicitly provide that a prior conviction in a foreign jurisdiction may serve to enhance the sentence for an instant conviction, the provision at issue here, Penal Law § 70.70 (4), explicitly does not, by its plain terms, provide for any such authorization. It is a familiar cannon of statutory construction that where "a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded." Statutes § 240. Thus, the prior violent felony foreign jurisdiction provision at issue here not only does not appear in the Penal Law its absence is conspicuous.

The other statutory provision which is directly applicable to this question, however, is CPL 400.21, which provides the procedure by which the Court shall determine whether a Defendant is a second felony offender or second felony drug offender. Those provisions reference prior violent felony convictions and also reference the fact that an offender's predicate felony status can be derived from considering a prior conviction in a foreign jurisdiction in an appropriate case. In contrast to the substantive provisions referenced supra, CPL 400.21's procedural provisions clearly indicate that the intent of the Legislature in enacting the violent predicate felony sentencing provisions at issue here was to include prior violent felony convictions in foreign jurisdictions.

The predicate violent felony provisions at issue here were enacted by the Drug Law Reform Act of 2004 (Chapter 738 of the laws of 2004, the "DLRA"). That statute, inter alia, modified the sentencing structure for drug law offenders from an indeterminate to a determinate system. Part of the DLRA (§ 18 of the Act) amended CPL 400.21 to modify the procedures used in determining whether offenders were second felony offenders to, in addition, provide that those same procedures would be used in determining whether offenders were second felony drug offenders.

Prior to the enactment of the DLRA, CPL 400.21 did not make any reference to whether [*4]or not an offender's prior felony conviction was for a violent felony because that determination had no relevance in determining an offender's sentence as a Second felony offender. The DLRA changed that, however, by providing an enhanced sentence for second felony drug offenders whose prior convictions were for violent felonies. The DLRA amended CPL 400.21 to provide a procedure for determining whether an offender's prior conviction was for a violent felony in order to provide a means for determining whether a second felony drug offender would be subject to the enhanced sentences applicable to offenders with a prior violent felony conviction.

Critically, the DLRA's amendments to CPL 400.21, in three separate places, note that the procedures to be followed in making this prior violent felony determination shall include procedures for determining whether an offender had a prior violent felony conviction in another state. See DLRA § 18, amending subdivisions (2) and (4) and paragraph (c) of subdivision (7) of section 400.21 of the Criminal Procedure Law.

In the first of these DLRA amendments, the prosecutor is directed to include in the prosecutor's statement of predicate felony conviction, whether the defendant was previously convicted of a predicate violent felony in a foreign jurisdiction (amendments made by the DLRA are noted in bold face type here): 2. Statement to be filed. When information available to the court or to the people prior to sentencing for a felony indicates that the defendant may have previously been subjected to a predicate felony conviction, a statement must be filed by the prosecutor before sentence is imposed setting forth the date and place of each alleged predicate felony conviction and whether the predicate felony conviction was a violent felony as that term is defined in subdivision one of section 70.02 of the penal law, or in any other jurisdiction of an offense which includes all of the essential elements of any such felony for which a sentence to a term of imprisonment in excess of one year or death was authorized and is authorized in this state regardless of whether such sentence was imposed . . . CPL 400.21 (2).

The DLRA then went on to provide, using similar language, that in cases where there was no dispute about whether a defendant had been the subject of a prior violent felony offense committed in a foreign jurisdiction, a court must enter such a finding:

4. Cases where further hearing is not required. Where the uncontroverted allegations in the statement are sufficient to support a finding that the defendant has been subjected to a predicate felony conviction the court must enter such finding, including a finding that the predicate felony conviction was of a violent felony as that term is defined in the subdivision one of section 70.02 of the penal law, or in any other jurisdiction of an offense which includes all of the essential elements of any such felony for which a sentence to a term of imprisonment in excess of one year or death was authorized and is authorized in this state regardless of whether such sentence was imposed, and when imposing sentence must sentence the defendant in accordance with the applicable provisions of section 70.06, 70.70 or 70.71 of the penal law. CPL 400.21 (4).

In the last of these amendments, using virtually identical language, the Legislature again added language referencing prior violent felony convictions in foreign jurisdictions in the [*5]findings a court must make after a contested predicate felony hearing: (7) (c): At the conclusion of the hearing the court must make a finding as to whether or not the defendant has been subjected to a predicate felony conviction, including a finding as to whether or not the predicate felony conviction was of a violent felony as that term is defined in the subdivision one of section 70.02 of the penal law, or in any other jurisdiction of an offense which includes all of the essential elements of any such felony for which a sentence to a term of imprisonment in excess of one year or death was authorized and is authorized in this state regardless of whether such sentence was imposed.

It is clear that the only reason for the three amendments made by the Legislature to CPL 400.21 in which a procedure for determining whether a defendant had previously been convicted of a violent felony in a foreign jurisdiction is provided was because of an intent by the drafters of those amendments that prior violent felonies in foreign jurisdictions would "count" in determining an offender's sentencing range. There is no other possible reason why those amendments might have been inserted into the statute as a part of the DLRA. What these conflicting provisions raise, in the Court's view, is a close question in which a conflict between the applicable provisions of the Penal Law and the Criminal Procedure Law must be reconciled.

In this regard, in the Court's view, there a number of arguments which could be advanced in support of the Defendant's position. First, the provisions of Penal Law Article 70 in which the foreign violent felony authorization does not appear are the statute's substantive provisions the provisions which define which offenders are subject to enhanced sentences for prior violent felonies. The provisions contained in CPL 400.21 provide a procedural means for making the determinations used in Penal Law Article 70.

With respect to Article 70's substantive provisions: "Where the language of the statute is clear and unambiguous, the intent of the framers is to be first sought in the words and language employed, and, if the words plainly and clearly express the sense of the framers, resort need not be had to other means of interpretation." NY Statutes § 76. Where the language of a statute is clear, precise and unambiguous, that language is controlling. Matter of Washington Post Company v. New York State Insurance Department, 61 NY2d 557, 565 (1984).

It is also, of course, a familiar cannon of statutory construction that "[a] statute whose tendency is toward the restraint of the personal liberty of the individual is to be strictly construed in favor of the individual". Statutes § 314. "[T]hat interpretation should be given conflicting provisions of a penal statute which best protects the rights of a person charged with an offense." Statutes § 271. There are some significant caveats to this doctrine. The New York Penal Law itself provides that "[t]he general rule that a penal statute is to be strictly construed does not apply to this chapter" ("this chapter" being the Penal Law) Penal Law § 5.00. The question here, however, involves not only the Penal Law but the interplay between the Penal Law and the Criminal Procedure Law. There is no indication in the Penal Law that it statutory abrogation of the rule of lenity was ever intended to extend beyond the bounds of that chapter.

It is also true that the fundamental rules of statutory construction that words mean what they say, for example, or that a Court must attempt in construing an ambiguous statutory provision to ascertain the intent of the legislature apply to penal statutes just as they do to other [*6]statutes. Nevertheless, in the view of this Court, in considering a close question like that presented here, the fact that one of two alternative statutory constructions would require the deprivation of an offender's liberty for an additional period of years is entitled to weight in the analysis. See People v. Jackson 106 AD2d 93, 96 (1984) ("if two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity" although legislative intent always remains the primary consideration (citations omitted); See also People v. Green 68 NY2d 151 (1986) (same).

Here the substantive Penal Law provision of the statute which defines which offenders shall be subject to enhanced sentences for having committed a prior violent felony could not be more clear the language plainly does not include prior convictions from foreign jurisdictions. Foreign convictions are referenced only in Criminal Procedure Law provisions which outline the types of determinations which must be made at a predicate felony hearing.

The Court of Appeals recently a considered a question of Penal Law statutory construction under a circumstance somewhat analogous to the one here in People v. Soriano, __ NY3d __ (February 19, 2009). There, the Court held that a sentencing court need not orally pronounce the requirement that a defendant pay a mandatory surcharge or crime victims' assistance fee at sentencing in order for such fee assessments to be valid. The Court reasoned, in part, that the plain language of the statute provided that such surcharges and fees were "in addition to any sentence required or permitted by law" and were therefore not a part of the sentence. See Penal Law § 60.35 (1).

The Court then considered the fact that the following subdivision of the statute described surcharges and fees as "a sentence to pay a mandatory surcharge, crime victim assistance fee or supplemental sex offender victim fee" in outlining how such surcharges and fees were to be calculated when a defendant was convicted of two or more offenses. That is, this second subdivision (Penal Law § 60.35[2]) clearly seemed to imply that such surcharges and fees were included as a part of a sentence and therefore, under the Court's prior precedents, should be required to be pronounced at sentencing in order to be valid. The Court found that the first of these possible constructions that surcharges and fees were not intended to be part of a sentence was the one most consistent with the legislature's intent. But the Court also found the language of subdivision (1) and not subdivision (2) controlling on this point because the first subdivision imposed the statute's substantive obligation, while the second was a procedural provision which described how such surcharges and fees should be calculated: Defendant argues, however, that the language of section 60.35 (1) does not mandate the outcome in this case because Penal Law § 60.35(2) refers to a "sentence to pay a mandatory surcharge, crime victim assistance fee or supplemental sex offender victim fee" (emphasis added). But it is subdivision (1) of section 60.35 not subdivision (2) which actually creates the obligation to pay the mandatory surcharge and crime victim assistance fee; subdivision (2) merely tells the court how to calculate the surcharge and the various fees in cases where a person has been convicted of two or more crimes or violations or offenses.

Despite what this Court views as a number of valid arguments for Defendant's position [*7]here, however, the Court finds the construction urged by the People to be the more persuasive one. "The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the legislature." NY Statutes § 92. As the Court of Appeals has held: "[O]ur role is to discern and implement the will of the Legislature and attempt by reasonable construction to reconcile and give effect to all of the provisions of the subject legislation". Carney v. Philippone, 1 NY3d 333, 339 (2004).

In seeking to determine legislative intent, every part of a statute or act must be read together. NY Statutes § 97. "[E]very statute is to be considered with reference to the general system of laws of which it forms a part. It is governed by one spirit and policy and was intended to be consistent in its several parts." Statutes 221 (b). Statutes which must be read together to discern the intention of the legislature are said to be in pari materia. Id. Considering the question here, "[t]he Penal Law and the Code of Criminal Procedure (now the Criminal Procedure Law) are in pari materia" and thus must be read together in construing the intent of a provision which is addressed by both chapters. Statutes 221 (c); People v. Bauer, 161 Misc 2d 588, 590-591 (Jefferson County 1994).

The intent of the legislature here is readily discernible both from the provisions of the DLRA itself and from the Act's purposes. With respect to its provisions, the legislature spelled out the fact that violent felony convictions in foreign jurisdictions would "count" in determining an offender's predicate felony status clearly in three separate provisions of the Criminal Procedure Law. Conversely, the Penal Law provision at issue here appears to contain a simple drafting error, an error which would not have arisen had a single different word or cross reference been used[FN1]. The provisions of the DLRA leave no doubt, in the Court's view, about the intent of the legislature in drafting this provision.

The construction of the statute urged by the Defendant here also would make no sense when considering the policy purposes of the DLRA While the general purpose of the DLRA was to reduce sentences for drug offenders, the Act also modestly increased minimum sentences for some drug offenders with prior violent felony convictions. In this regard, the Act clearly distinguishes "non-violent" drug offenders from offenders with a violent felony history. The construction urged by the Defendant here would have the DLRA apply the increased sentences for drug offenders with prior non-violent felony convictions to offenders with prior foreign convictions, but, incongruously, not apply sentences for offenders with prior violent felony offenders to offenders with foreign convictions.[FN2] There is no indication that this result would [*8]serve any of the policy purposes of the DLRA.

This construction would also be incongruous with the Penal Law itself. While, as noted above, the absence of the prior foreign violent felony provision in the Penal Law is conspicuous, it is also conspicuously incongruent and devoid of any discernible legislative purpose. To construe the Penal Law provision at issue here as having been intentionally crafted by the legislature, one would have to believe that among all of the Penal Law provisions where a particular class of foreign convictions "counts" in raising an offender's sentence, drug offenders with prior out-of-state violent felony convictions were singled out by the legislature, for no apparent reason, for more lenient treatment.

As has been noted repeatedly supra, the primary role of the courts in interpreting statutes is to give effect, through reasonable construction, to the intent of the legislature. In the Court's view, the intent here is clear. Moreover that intent is discernible not through extra-statutory extrinsic evidence of questionable reliability but through the clear language of the DLRA itself. For all of these reasons, the Court holds that an offender with a prior violent felony conviction in a foreign jurisdiction is eligible for the enhanced sentences provided by Penal Law § 70.71 (4).

The Defendant next argues that Defendant's alleged robbery conviction in North Carolina may not serve as a predicate felony conviction under New York law because the Defendant could have been convicted for violating that North Carolina statute by conduct which would not constitute a felony in New York. In order for a conviction in a foreign jurisdiction to qualify as a predicate felony conviction in New York, the crime must be one for which a sentence to a term of imprisonment in excess of one year is authorized in that foreign jurisdiction and is also authorized in New York. Penal Law § 70.06 (1) (b) (I). A court must ascertain whether the foreign conviction has equivalent elements to a New York felony. People v. Gonzalez 61 NY2d 586 (1984). Here, the North Carolina robbery statute allegedly violated by the Defendant provides as follows: §Robbery with firearms or other dangerous weapons.(a) Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night or who aides or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony. NCGS § 14-87

Defendant notes that generally where a foreign statute may be violated by actions which would not violate an analogous New York felony statute, the foreign conviction cannot be a predicate felony under New York law. See People v. Fermin. 231 AD2d 436 (1st Dept 1996); People v. Maglione, 305 AD2d 426 (2nd Dept 2003), lv. denied, 5 NY3d 830 (2005). Under New York law, there can be no violation of the robbery statute (Penal Law Article 160), unless the Defendant had the intent to steal at or before the time force was used. Where force is used against a victim and a theft occurs only as an afterthought to the use of force, no robbery occurs. [*9]People v. Cochran, 10 AD3d 563 (1st Dept 2004); Somerville v. Conway, 281 F. Supp. 2d 515, 520 (EDNY 2003).

Under North Carolina law, however, a different rule applies. There, a defendant can be convicted of robbery even where the intent to steal from a victim did not arise until after force was used, so long as the theft and the use of force "can be perceived by the jury as constituting a single transaction". State of North Carolina v. Fields, 315 NC 191 (1985). Thus, Defendant argues, a conviction for robbery under North Carolina law cannot be used to determine that a defendant has a predicate felony conviction for robbery under New York law. See People v. Holder, 5 Misc 3d 1029(A) (New York County 2004).

In response the People argue, first, that in People v. Austin, 161 AD2d 275 (1st Dept 1990), app. denied, 76 NY2d 852, the Court held that the elements of common-law robbery in North Carolina are equivalent to the crimes of Attempted Robbery in the Third Degree and Grand Larceny in the Second Degree under New York law. However, as Defendant points out and as Justice Ward explicitly held in People v. Holder, supra, the Austin holding was effectively overruled by the First Department in People v. Cochran, 10 AD3d 563 (1st Dept 2004). There, the Court held that under Maryland law, for a robbery to occur, the intent to steal need not exist at the time force is used. Therefore, the Court held, a conviction for a robbery in Maryland may not qualify as a predicate felony conviction in New York. The issue in Cochran is the same as that which arose, with a different result, in the earlier Austin case and which also arises here.

In Holder, Justice Ward also concluded that because the crime of robbery in North Carolina may be committed not only when property is stolen from the person of another but when property is stolen where a person is present, the crime of robbery in North Carolina is not necessarily equivalent to the crime of Grand Larceny in the Fourth Degree under New York law where the New York crime is premised on the fact that property was stolen from the person of another (See Penal Law § 155.30 [5]). Another difference (not discussed in Holder) between the North Carolina and New York robbery statutes is that the North Carolina law criminalizes not only completed crimes but attempts while under New York law an attempt to commit a robbery is a crime of lesser degree than the completed crime. This Court agrees with the holding of the Court in Holder and therefore holds that if the language of the North Carolina statute under which the Defendant here was convicted is simply compared to New York robbery and grand larceny statutes, it cannot be concluded that the Defendant committed a felony in North Carolina whose elements are equivalent to the elements of a felony in New York .[FN3]

The People argue, however, that although a court scrutinizing a foreign conviction is generally limited to reviewing the text of the foreign statute itself (see People v. Olah 300 NY 96, 98 [1949]), an exception to this rule applies which allows "a sentencing court to go beyond the statute and scrutinize the accusatory instrument in the foreign jurisdiction where the statute renders criminal not one act but several acts which, if committed in New York, would in some [*10]cases be felonies and in others would constitute only misdemeanors". People v. Gonzalez, supra, 61 NY2d at 589; People v. Reilly, 273 AD2d 143 (1st Dept 2000), lv. denied, 95 NY2d 937; People v. Palmer, 290 AD2d 358 (1st Dept 2002), lv. denied, 98 NY2d 639.

The Indictment applicable to Defendant's North Carolina robbery conviction, dated August 19, 1996, provides as follows: The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did steal, take and carry away another's personal property, twelve gold necklaces, a wallet and a Panasonic compact disc radio, having a value of two hundred dollars ($200.00) from the person and presence of Phillip Raphael Nunley. The defendant committed this act by means of having in his possession and threatening the use of a double-barreled sawed-off shotgun, whereby the life of Phillip Raphael Nunley was endangered.

It is clear to this Court that the Indictment indicates that the Defendant in this case was charged with a crime in which he had the intent to steal property from the victim prior to or at the time he threatened to use the shotgun. Thus, the Indictment indicates that he stole the property by "threatening the use of a double-barreled sawed-off shotgun" endangering the victim's life. The allegations of the Indictment cannot be construed as alleging that the Defendant stole the victim's property as an afterthought to threatened violence in which there was no intent to steal property the gun was used for the purpose of stealing the property. It is also clear that the Defendant was alleged to have actually possessed and actually threatened the use of a sawed-off shotgun.

Moreover, Defendant's conviction here appears to be one which qualifies for the rule announced in Gonzalez. Here, the Defendant was convicted of a North Carolina crime which criminalizes a range of possible acts, some of which would be felonies and some of which would only be misdemeanors under New York law. Resort to the Indictment is necessary to determine which category the Defendant's conviction falls into.

Defendant's North Carolina robbery conviction, as clarified by the Indictment, makes clear that Defendant's conviction is equivalent to Robbery in the First Degree as well as Robbery in the Second and Third Degrees under New York law. The conviction and the Indictment make clear that the Defendant was convicted of forcibly stealing property by the use and through the display of a dangerous instrument, to wit, a sawed-off shotgun and was armed with that shotgun at the time of the robbery.

For all of these reasons, the Court holds Defendant's prior conviction appears to qualify him as a Second felony drug offender who was previously convicted of a violent felony to Penal Law Law § [*11]70.71 (4). On the previously scheduled adjourned date in this case, the Court will conduct a hearing pursuant to CPL 400.21 to determine whether the Defendant controverts any of the other allegations in the People's predicate felony statement and whether the People have proven beyond a reasonable doubt that the Defendant has been subjected to a predicate felony conviction for a violent felony offense.

Dated: New York, New York________________________

February 26, 2009Daniel P. Conviser, A.J.S.C. Footnotes

Footnote 1: Had the DLRA simply used the term "predicate violent felony" instead of "violent felony" in describing which offenders with prior violent felonies would be subject to enhanced sentences and inserted the proper cross-reference, no issue would have arisen here. See Penal Law § 70.71 (4) (b).

Footnote 2: If the Penal Law was given the construction urged by the Defendant, Defendant could still be subject to an enhanced sentence by virtue of having a prior foreign felony conviction for a non-violent felony. The sentencing range applicable to the Defendant under this circumstance, however, would be less than the sentence applicable to an offender with a prior violent felony conviction.

Footnote 3: In stating its agreement with the Court's decision in Holder, it should be noted that the Holder decision, which is not binding on this Court, did not consider whether a review of the accusatory instrument in that case may have led to a different outcome. That is the issue which is addressed immediately infra.