People v Donald

[*1] People v Donald 2005 NY Slip Op 51771(U) [9 Misc 3d 1124(A)] Decided on November 1, 2005 Supreme Court, New York County Ward, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2005
Supreme Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

Christopher Donald, Defendant.



3063/05

Laura A. Ward, J.

On July 22, 2005, the defendant pleaded guilty to attempted criminal possession of a controlled substance in the third degree, in violation of Penal Law ("PL") §§ 110/220.16), and criminal sale of a controlled substance in the fifth degree, in violation of PL § 220.31. The People have filed a predicate felony statement alleging that, within the last 10 years, the defendant was convicted of importation of cocaine in Maryland (Md. Code Annot, art. 27, § 286a). The defendant, by way of motion, has opposed the use of the conviction as a predicate felony conviction.

The conviction which the People allege constitutes a prior felony offense, pursuant to Penal Law § 70.06(1)(b), is the defendant's conviction in Maryland for the importation of cocaine, in violation of Md. Code Annot., art. 27, § 286a. The Maryland statute criminalizes the importation of several different drugs. Dependent upon which drug is the predicate for the charge against the defendant, a violation of the Maryland statute may be the equivalent of either a New York misdemeanor or felony. Therefore, a reference to the statute alone makes it is impossible to determine whether the defendant was convicted of a crime that is the equivalent of a felony in New York. The People referenced the accusatory instrument underlying the defendant's conviction and the defendant's plea allocution to establish that the defendant's Maryland conviction is the equivalent of a felony in New York. The defendant opposes the use of either the accusatory instrument or the plea allocution. The defendant argues that when a court evaluates an out of state conviction for the purpose of determining whether the crime constitutes a prior felony offense under the New York law, the court may only refer to the out of state statute and may not refer to either the underlying accusatory instrument or the plea allocution.

In People v. Olah, 300 NY 96 (1949), the Court of Appeals held that a sentencing court evaluating an out of state conviction for the purpose of determining whether is qualifies as a predicate felony in New York, may look to the statute underlying an out of state conviction and to those facts set forth in an indictment that are "'operative and material'" but not those that are "'immaterial [and] surplusage'" (at p. 102 [citing People ex. rel. Newman v. Foster, 297 NY 27 [*2](1947]). In People v. Gonzalez, 61 NY2d 586, 589 (1984), the Court reiterated that foreign crimes may not "be extended or enlarged by allegations in the indictment or by referring to evidence at trial."

While it is the general rule that a determination of whether a foreign crime is the equivalent of a felony in New York " is limited to a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes [and that] [t]he allegations contained in the accusatory instrument underlying the foreign conviction may ordinarily not be considered, because such instruments frequently contain nonessential recitals" (People v. Muniz, 74 NY2d 464, 467 - 468 (1989)), reliance upon an accusatory instrument to make such a determination is not prohibited. In those cases where the foreign statute defining the crime for which the defendant was convicted criminalizes different acts, some of which are the equivalent of a felony in New York and others of which merely constitute misdemeanors, resorting to the accusatory instrument is necessary to identify which criminal acts formed the basis of the defendant's conviction. "In such instances, the accusatory recitals are not merely surplusage, and they may properly be considered in determining whether Penal Law § 70.06(1)(b) has been satisfied." (People v. Muniz, supra, at p. 468)

In People v. Palmer, 290 AD2d 358, lv. to appeal denied, 98 NY2d 639 (2002), the First Department ruled on this issue as it applied to the defendant's Maryland conviction pursuant Md. Code Annot, art. 27, § 286a, the statute at issue here. The court held that sentencing court properly relied on the Maryland accusatory instrument "since the Maryland statute (Md. Code Annot., art. 27, § 286a) renders criminal several acts which, if committed in New York, would not all be felonies." (citations omitted)

Similarly, those portions of a guilty plea which relate to charges to which the defendant is pleading guilty and the acts which form the basis of those charges should also be permitted to be considered in determining whether the out of state conviction is the equivalent of a felony in New York State.

Based upon the foregoing, for the purpose of determining whether the defendant is a second felony offender, the People will be permitted to use a copy of the Maryland accusatory instrument and the guilty plea for the purpose of assisting the court in determining whether the defendant's conviction in Maryland would be a felony if committed in New York.

The defendant also challenges the use of the defendant's Maryland conviction on the ground that the defendant entered a plea of nolo contendere to the Maryland charges and that under Maryland law a plea of nolo contendere does not result in a conviction. However, the minutes of the defendant's Maryland plea indicate that the defendant did not enter a plea of nolo contendere to the charge at issue here, but rather entered a plea of guilty to that charge.

The transcript of the defendant's plea reflects that after the defendant was informed of, among other things, the charges against him, the elements of the charge, and the [*3]rights he was waiving by entering a plea of guilty (Transcript of defendant's guilty plea, ["Tr.] at pp. 5-14), the court asked the defendant if it "[i]s your desire to have the court accept your guilty plea?" The defendant responded "[y]es, sir." (Tr. at pp. 14 - 15)

The defendant's response to the court was without qualification. At no time did the court, the defendant, his lawyer or the prosecutor indicate that the defendant's guilty plea was anything other than an admission of guilt.

Additionally, Md. Rule 4-242 (d) states: "A defendant may plead nolo contendere only with the consent of court. The court may require the defendant or counsel to provide information it deems necessary to enable it to determine whether or not it will consent." The transcript of the defendant's guilty plea is void of any facts which would indicate that the court was consenting to a plea of nolo contendere. The record is clear that the defendant pleaded guilty to the charge and did not enter a plea of nolo contendere.

Finally, the defendant pleaded to violating Md. Ann. Code art. 27, § 286A(a)(2) which criminalizes importing "28 grams or greater of cocaine or any mixture containing 28 grams or greater of cocaine." The defendant pleaded guilty to importing 118 grams[FN1] of cocaine, found in the defendant's bag. (Tr. at p. 17) Therefore, in view of the fact that 118 grams of cocaine is the equivalent of 4.16 ounces, the defendant's possession of the 118 grams of cocaine would, if occurring in New York, violate PL § 220.21(1), criminal possession of a controlled substance in the first degree, which criminalizes the possession of cocaine of an aggregate weight of four ounces or more.

Based upon the foregoing, I find that the defendant's Maryland conviction qualifies as a predicate felony and I deem the defendant a second felony offender.

.

The foregoing is the decision and order of the court.

Dated: New York, New York

November 1, 2005

Laura A. Ward

Acting Justice Supreme Court Footnotes

Footnote 1:A gram is the equivalent of .035 ounces. Therefore, 28 grams is the equivalent of .987 ounces and 118 grams is the equivalent of 4.16 ounces.