People v Doe

[*1] People v Doe 2020 NY Slip Op 50856(U) Decided on July 23, 2020 Supreme Court, New York County Paek, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 23, 2020
Supreme Court, New York County

The People of the State of New York

against

John Doe AKA KIP CAPRICE AKA KIP WILSON, Defendant.



02921/2019



For the People: Cyrus R. Vance, Jr., District Attorney, New York County, By Assistant District Attorney Roy Chon, New York, NY

For the Defendant: The Legal Aid Society, By Evan M. Rock, New York, NY
Kate Paek, J.

The defendant is charged with Assasult in the First Degree in violation of New York Penal Law ("P.L.") § 120.10(1), Assault in the Second Degree in violation of PL § 120.05(2) and Criminal Posssession of a Weapon in the Third Degree in violation of PL § 265.02(1) for an incident that occurred on September 5, 2019 and for which he was arraigned on the indictment on September 26, 2019. The defendant now challenges the Prosecutor's assertion that the defendant is a violent predicate felon based on the defendant's prior conviction for Robbery in the First Degree in Missouri. The defendant argues the conduct captured by the foreign statute for Robbery in the First Degree includes conduct that, if committed in New York State, would not constitute a felony.

A prior foreign conviction may form the basis for an enhanced sentence as a second felony offender as long as the conviction was for a crime that, if committed in New York State, would constitute a felony. PL § 70.06(1)(b)(i). To determine whether the foreign statute is strictly equivalent to a felony in New York State the court must compare the elements of the foreign statute with the elements of the New York statute. People v. Helms, 30 NY3d 259, 263-264 (2017). Generally, the elements of the crime cannot be extended by allegations contained in the accusatory instrument. Id.; People v. Olah, 300 NY 96, 98 (1949). However, when the foreign statute is divisible — the foreign statute is comprised of separate and distinct criminal acts, some of which may be a felony in New York State — then the courts may look to material facts contained in the accusatory instrument to determine if the conviction would be a felony in New York. See People v. Muniz, 74 NY 464, 467 (1989); People ex rel. Gold v. Jackson, 5 NY2d 243, 245-46 (1959).

In this case, the prosecutor relies on a Missouri conviction for Robbery in the First Degree to assert the defendant is a predicate felon eligible for an enhanced sentence. In support, [*2]the prosecutor provided a copy of the defendant's Guilty Plea/Judgment, along with the underlying indictment. See People's Response to Defendant's Opposition to Predicate Felony Statement, Exhibits 1 & 2.[FN1] These records indicate the defendant plead guilty to Robbery in the First Degree and Armed Criminal Action on November 25, 2003. The record of defendant's guilty plea does not specify a particular section or subsection of the Missouri statute. The defendant argues this conviction cannot serve as a predicate felony in New York because a statute to statute comparison reveals some subsections of the foreign statute are not equivalent to New York's Robbery in the First Degree statute, Penal Law 160.15. Since the foreign statute is broader than the New York counterpart, the defendant argues, it cannot serve as the basis for a predicate sentence enhancement.

The Missouri statute for Robbery in the First Degree, RSMo § 569.020, [FN2] is similar to New York's statute for Robbery in the First Degree, P.L. § 160.15,[FN3] in that both statutes contain four separate subsections. Subsections (2) and (3) of the Missouri statute are identical to subsections (2) and (3) of the New York statute, as conceded by the defendant. Defendant's Memorandum in Opposition to Predicate Felony Statement, pp. 1-2, 4. Subsections (1) and (4) of the two statutes, however, have some differences. This difference is not dispositive of the issue, however, since the statute charges multiple discrete acts and the Missouri record of conviction fails to identify which of those acts supports the defendant's conviction.[FN4] In this instance, the court may look to the charging instrument for clarification of which act the conviction is based upon. See People v. Gonzalez, 61 NY2d 586, 591-592 (1984) (comparing People ex rel Goldman v. Denno, 9 NY2d 138 (1961) with Jackson, infra); see also People v. Yancy, 86 NYd 239, 246-47 (1995) (holding that when NJ robbery statute has two subsections that correspond with NY robbery statute and one subsection that does not, court may look to indictment, but not superseded complaint, to determine subsection of conviction).

Missouri's Robbery in the First Degree statute contains four subsections, each of which charges a separate and discrete act. Therefore, since the statute is divisible, the court may refer to the indictment to see which act forms the basis of the conviction. Under the first count of the indictment for the Missouri conviction, the allegations are "the defendant forcibly stole miscellaneous currency [while] armed with a deadly weapon." See People's Response to [*3]Defendant's Opposition to Predicate Felony Statement, Exhibit 2. The Missouri indictment therefore clarifies the discrete act that served as the basis for the conviction for Robbery in the First Degree. The court concludes the defendant was convicted of RSMo § 569.020(2).

The People implicitly concede that this foreign conviction is not the equivalent of a conviction for Robbery in the First Degree in New York.[FN5] That concession is warranted. While the language of RSMo § 569.020(2) mirrors the language of PL § 160.15(2), the Missouri definition of "deadly weapon" under RSMo § 556.061(10)[FN6] is broader than the New York definition of "deadly weapon" under PL § 10.00(12) and therefore the Missouri conviction is not equivalent to Robbery in the First Degree in New York. In other words, there is conduct criminalized by the Missouri statute that would not constitute Robbery in the First Degree in New York. As such, the defendant is not a violent predicate offender.

The People therefore argue instead that the defendant is a non-violent predicate felon because the Missouri conviction is analagous to another felony in New York—Robbery in the Third Degree. They argue that the elements of Missouri's Robbery in the First Degree statute fully encompass the elements of New York's statute, which provides that: "[a] person is guilty of Robbery in the Third Degree when he forcibly steals property." PL § 160.05. Both statutes pertain to cases in which a defendant "forcibly steals property." See RSMo § 569.010 and PL § 160.05. But the defendant counters that the foreign statute is not equivalent to PL § 160.05 because the Missouri statute criminalizes conduct that would not constitute a felony in New York.

The dispute centers on the difference between the foreign statute's definition of "stealing" and New York's definition of "larceny." The People argue that stealing is defined as two discrete and mutually exclusive acts — a taking of property or a taking of services — therefore it is proper to review the indictment to determine which act supported the conviction. The defendant responds that it would be error for this court to look to the indictment because the foreign statute does not contain discrete, mutually exclusive acts, but rather, the foreign statute defines an element more expansively than the New York statute.

As discussed infra, the general rule is that a court is limited to a comparison of the elements of the foreign statute and the New York statute. The exception to the general rule is when a statute — not just an element— is divisible a court may look to the accusatory instrument.[FN7] In the instant case, the court determined that Missouri's robbery statute is divisible as it contains four subsections or, said in another way, four different acts, that could constitute the crime of Robbery in the First Degree. The court may look at the accusatory instrument strictly to discern which one of these four different acts formed the basis for the defendant's conviction of Robbery in the First Degree. See Yancy, 86 NY2d at 246-247 (permitting court to review indictment to determine which subsection of NJ robbery statute defendant was convicted of when only two subsections correspond to NY felonies).

After the court has referred to the accusatory instrument and determined the subsection [*4]the defendant was convicted of, the court then must compare the language of the statutes to determine whether the elements are similar. Muniz, 74 NY2d 464, 470 (comparing NJ burglary statute with NY burglary statute); People v. Armstrong, 167 AD2d 108, 109-10 (1st Dept 1990) (comparing NJ theft statute with NY Grand Larceny statute); People v. Boston, 79 AD3d 1140, 1141 (2d Dept 2010) (analyzing FL burglary statute and NY burglary statute). At this stage of the analysis, the court may not refer to the accusatory instrument in order to expand, or clarify an element of the statute. See Muniz, 74 NY2d at 469-470 (where the element of intent in NJ burglary statute is broader than NY statute, court may not refer to accusatory instrument to narrow or clarify element); People v. Boston, 79 AD3d at 1141 (where FL burglary statute contains element of intent broader than NY burglary statute's intent element, court may not refer to accusatory instrument); Olah, 300 NY at 100-102 (where NJ statute criminalized theft over $20 and NY statute required over $100, court did not look to NJ indictment, which alleged defendant stole goods worth over $200). The court can, however, look to foreign statutes or case law in order to interpret the elements of the foreign crime of which the defendant was convicted and determine whether they are equivalent to a New York felony. See Helms at 264-66 (analyzing Georgia law to find that the Georgia statute included a "knowingly" mens rea element that was necessary for the conviction to be equivalent to a NY burglary); People v. Jurgins, 26 NY3d 607, 613-15 (2015)(looking at D.C. statutes and caselaw to find that D.C. law criminalized conduct such as pickpocketing, which is not equivalent to robbery in NY).

As discussed above, the defendant in this case was convicted of RSMo § 569.020(2), which states in part:

"A person commits the crime of robbery in the first degree when he forcibly steals property and in the course thereof he, or another participant in the crime . . . (2) is armed with a deadly weapon."

RSMo § 569.020(2) contains three elements — (1) "forcibly steals" (2) property[FN8] (3) when he or another participant is armed with a deadly weapon. The first element of "forcibly steals" is defined, in part, as when: "in the course of stealing, as defined in section 570.030, [a person] uses or threatens the immediate use of physical force upon another person for the purpose of ." RSMo § 569.010(1).[FN9]

This language mirrors the definition of "forcibly steals" in PL § 160.00, except "stealing" replaces "larceny."[FN10] The foreign statute then goes on to define "stealing," in relevant [*5]part, as,

"A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion." 570.030(1)(emphasis added).[FN11]

In New York, "larceny" is defined in PL § 155.05 as when, "with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof."

It is apparent that Missouri's definition of stealing is broader than New York's definition of larceny. The foreign statute's definition of stealing includes appropriation of property or services without consent or by means of deceit. New York's definition of larceny relates only to property and doesn't include theft of services. The analysis ends there. An essential foreign statutory element is defined more broadly than the corresponding element in the New York statute. As such, the foreign statute captures conduct that does not constitute a felony in New York, i.e., the forcible taking of services as opposed to property, and the Missouri conviction is not equivalent to a felony in New York. The People ask the court to consider the Missouri indictment, which alleges that the defendant stole currency and not services, but, for the reasons set forth above, review of the accusatory instrument is not appropriate at this stage of the analysis. The court is limited to an examination of the statutory elements themselves. See Muniz, Boston, Olah, infra. Since the foreign statute's definition of one of the elements is broader than the New York counterpart, the foreign conviction does not constitute a felony in New York State and that conviction may not form the predicate for an enhanced sentence.

For these reasons, the defendant's foreign conviction will not be considered a predicate felony, either violent or non-violent, for the purposes of the predicate felony statement provided by the prosecutor.

This opinion constitutes the Decision and Order of the court.

Date: July 23, 2020

New York, New York

_____________________________________

HON. KATE PAEK

A.J.S.C. Footnotes

Footnote 1: These documents are under the name Edward Frazier, but there is no dispute that the records relate to this defendant, since they were obtained through his fingerprints.

Footnote 2: In 2017, the statute was renumbered as RSMo § 570.023, and the legislature added a provision regarding stealing controlled substances from a pharmacy. The statute operative in 2003 provided that: "[a] person commits the crime of robbery in the first degree when he forcibly steals property and in the course thereof he, or another participant in the crime, (1) causes serious injury to any person; or (2) is armed with a deadly weapon; or (3) uses or threatens the immediate use of a dangerous instrument against another person; or (4) displays or threatens the use of what appears to be a deadly weapon or dangerous instrument."

Footnote 3: PL § 160.15 provides that: "[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: 1. Causes serious physical injury to any person who is not a participant in the crime; or 2. Is armed with a deadly weapon; or 3. Uses or threatens the immediate use of a dangerous instrument; or 4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; . . ."

Footnote 4: The defendant argues that once the statutes are compared and determined to be dissimilar that ends the analysis and therefore does not address issues related to the divisibility of the statute in comparing RSMo § 569.020 and PL § 160.15.

Footnote 5: The People's response failed to address this issue entirely.

Footnote 6: In 2017, this definition was renumbered as RSMo § 556.061(22), but it was substantively unchanged.

Footnote 7: Both the People and the defendant attempt to apply the exception to Olah for divisible statutes to the element of larceny or stealing to each statute's discrete act. The analysis is first, is the statute divisible, then the indictment may be referred to determine which section of the statute the conviction rests upon. Once the section has been determined, the courts must then compare the element of each jursidiction's section to determine whether it is similar or dissimilar without reference to the accusatory instrument at this stage of the analysis.

Footnote 8: Defined in RSMo § 570.010(12) as "anything of value, whether real or personal, tangible or intangible, in possession or in action, and shall include but not be limited to the evidence of a debt actually executed but not delivered or issued as a valid instrument." In 2017, this section was renumbered as RSMo § 570.010(19), but it was unchanged. NY PL § 155.00(1) defines property as "any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation".

Footnote 9: This provision was later amended and renumbered as RSMo § 570.010(13).

Footnote 10: PL § 160.00 provides that "[a] person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person . . ."

Footnote 11:This statute was subsequently amended, but this is the version in effect in 2003.