People v Jenkins

[*1] People v Jenkins 2017 NY Slip Op 50449(U) Decided on April 5, 2017 Supreme Court, Kings County D'Emic, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 5, 2017
Supreme Court, Kings County

The People of the State of New York,

against

Angelo Jenkins, Defendant.



9608/2016



Eric Gonzalez, Acting District Attorney, Kings County, Brooklyn, New York, for the People; Megan K. Hannon, of counsel.

Brooklyn Defender Services, Brooklyn, New York, for Angelo Jenkins; Becca Miller, of counsel.
Matthew J. D'Emic, J.

The defendant brings an application before this court for a determination finding him not to be a predicate felon for New York sentencing purposes due to two foreign jurisdiction felony convictions. The People oppose the application.

The application is granted upon this court's finding that neither the defendant's prior conviction in Georgia nor his federal criminal conviction constitutes a predicate felony.

Discussion

The defendant is charged under the instant indictment with Criminal Obstruction of Breathing or Blood Circulation, Assault in the Third Degree, Burglary in the Second and Third Degrees, and other offenses, for events which took place in July, August, and November of 2016.

According to the parties, at issue here is whether either a federal conviction for Misprision of Felony (18 U.S.C. § 4) or the defendant's conviction for Aggravated Assault in Georgia (under Ga. Code Ann. § 16-5-21) would constitute a "predicate felony."

The People contend that defendant's Georgia conviction constitutes a predicate felony conviction, and in light of this, do not address the defendant's federal conviction; whereas the defense maintains that neither conviction may serve as a predicate felony for sentencing purposes because neither is analogous to any New York felony.

The court finds for the defendant as to these issues.

The predicate felony sentencing provisions of the Penal Law provide the framework for our inquiry. The second felony offender statute reads, in pertinent part, as [*2]follows:

"For the purpose of determining whether a prior conviction is a predicate felony conviction the following criteria shall apply:(i) The conviction must have been in this state of a felony, or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state." (Penal Law § 70.06 [1] [b], [emphasis supplied].)

(The remaining criteria are not here in issue.)

The Court of Appeals interprets the phrase, "is authorized in this state," to "require that the crime of which the defendant was convicted in another jurisdiction include all the essential elements of a New York felony" (People v Ramos, 19 NY3d 417, 419 [2012], citing to People v Muniz, 74 NY2d 464, 467-468 [1989]). The Ramos court instructs: "[a]s a general rule . . ., inquiry 'is limited to a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes' [citation omitted]," and further, it "is immaterial that the crime actually committed in the foreign jurisdiction may be the equivalent of a felony in New York, if the foreign statute would have permitted a conviction for conduct that did not amount to a New York felony [citations omitted]" (id.). This test is one of "strict equivalency," and "'technical distinctions between the New York and foreign penal statutes can preclude use of a prior felony as a predicate for enhanced sentencing'" (id., citing to Matter of North v Board of Examiners of Sex Offenders of State of NY, 8 NY3d 745, 751 [2007]).

The court will consider first the Georgia assault statute.

According to the People, the defendant was convicted upon charges he assaulted the Georgia victim (who is the same complainant in the matter at bar) on April 15, 2012, in the County of Fulton, State of Georgia, in violation of Ga. Code Ann. § 16-5-21.

In 2012, the Georgia "Aggravated Assault" statute provided [FN1] that "[a] person commits the offense of aggravated assault when he or she assaults:

(1) With intent to murder, to rape, or to rob;(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; or(3) A person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons." (Ga. Code Ann. former § 16521.)

Contending that Georgia's definition of "serious bodily injury" very closely mirrors New York's definition for "serious physical injury," the People maintain that Georgia's "Aggravated Assault" statute directly corresponds with New York's "Assault in the [*3]Second Degree" (Penal Law § 120.05).

Regardless of the apparent similarity between these two definitions for serious injury, this court does not concur in the conclusion that the two statutes are equivalent such that a prior conviction under Ga. Code Ann. § 16521 would render one a predicate felon for sentencing purposes in New York.

New York's "Assault in the Second Degree" statute provides a number of different formulations through which this offense may be committed. However, what they all have in common is that there must be resulting physical injury or serious physical injury, in addition to the requirement of scienter.

Thus, a person is guilty of Assault in the Second Degree when, inter alia:

"1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or2. With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or3. With intent to prevent a peace officer, a police officer, . . . from performing a lawful duty . . . he or she causes physical injury to such peace officer, police officer, . . . ; or

. . . 4. He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or4-a. He recklessly causes physical injury to another person who is a child under the age of eighteen by intentional discharge of a firearm, rifle or shotgun; or

. . . 6. In the course of . . . commission of a felony . . . he, or another participant . . . causes physical injury to a person other than one of the participants; or

. . . 8. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly causes serious physical injury to such person; or9. Being eighteen years old or more and with intent to cause physical injury to a person less than seven years old, the defendant causes such injury to such person; or

. . .."

(Penal Law § 120.05, emphasis supplied.)

By contrast, the Georgia statute in question contains no requirement that there be any resulting injury at all. In fact, an "assault" in Georgia does not even require any [*4]physical contact whatsoever.[FN2] Rather, under Georgia law, it is the crime of "battery" (see Ga. Code Ann. §§ 16523, 16523.1, and 16524) which is the analog to "assault" in New York.

Upon a comparison of the two statutes it must be concluded that Georgia's Aggravated Assault statute is not equivalent to New York's felony assault [FN3] provisions.

The People also suggest that the court refer to the Georgia accusatory instrument filed against the defendant for comparison purposes. However, there is no basis for this court to do so here (see People v Yusuf, 19 NY3d 314, 321-322 [2012—only if the foreign statute proscribes acts which would constitute both felonies and misdemeanors in New York may the court go beyond the statute and scrutinize the accusatory instrument for clarification of the crime charged]; People v Boston, 79 AD3d 1140, 1140-1141 [2nd Dept. 2010], lv. denied, 19 NY3d 994 [2012]). Furthermore and in any event, the language in the accusatory instrument, as quoted by the People in their papers, does not charge the defendant with acts which would constitute a felony in New York.

His Georgia conviction does not render defendant a predicate felon under New York law.

The parties indicate that the defendant also has a prior federal criminal conviction for "Misprision of Felony." That crime is defined as follows:

"Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both." (18 U.S.C. § 4.)

There is no New York equivalent of this federal felony. Thus the defendant's conviction for this offense also would not make him a predicate felon.

In conclusion, the court rules that neither the defendant's Georgia assault conviction nor his federal misprision of felony conviction constitutes a predicate felony conviction under the definition of Penal Law § 70.06 (1) (b).

This constitutes the decision and order of the court.

/ S /

Matthew J. D'Emic

J.S.C.

Georgia aggravated assault statute not comparable to New York assault in second degree statute in that, among other things, Georgia statute lacked any requirement of resulting injury due to assault Footnotes

Footnote 1:Since the defendant was charged with this offense for events which took place in 2012, this court is referring to the version of the statute which was in effect in 2012.

Footnote 2:"A person commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury." (Ga. Code Ann. § 16520.)

Footnote 3:Nor does it appear analogous to any other New York felony.