74 N.Y.2d 464, People v. Muniz

Citation:74 N.Y.2d 464, 548 N.Y.S.2d 633
Party Name:People v. Muniz
Case Date:November 21, 1989
Court:New York Court of Appeals

Page 464

74 N.Y.2d 464

548 N.Y.S.2d 633

The PEOPLE of the State of New York, Respondent,


Albion MUNIZ, Appellant.

New York Court of Appeals

November 21, 1989.

Page 465

Steven M. Statsinger and Philip L. Weinstein, New York City, for appellant.

Robert T. Johnson, Dist. Atty. (Terence J. Sweeney and Susan L. Valle, of counsel), for respondent. [548 N.Y.S.2d 634] OPINION OF THE COURT

TITONE, Judge.

Following his plea of guilty to the crime of attempted second degree burglary, defendant was adjudicated a second felony offender on the basis of a prior New Jersey burglary

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conviction. On this appeal, he contends that the lower courts erred in determining that the New Jersey crime of which he was convicted is the equivalent of a New York felony sufficient to satisfy the requirements of Penal Law § 70.06(1)(b)(i). His appeal requires us to consider whether the New Jersey crime of third degree burglary is, in the abstract, the equivalent of a New York felony and, if not whether the trial court could properly consider the factual allegations in the New Jersey accusatory instrument to elucidate the nature of defendant's prior crime.

Having been charged in Bronx County with attempted second degree burglary and fourth degree criminal mischief, defendant entered a plea of guilty to the former crime in satisfaction of the indictment. Before the plea was entered, the People filed predicate felony statements claiming that defendant was a second felony offender by virtue of at least one prior conviction for burglary in New Jersey (see, CPL 400.21[2]. In light of defense counsel's stated intention to challenge this claim, the court gave defendant a conditional sentence promise of 1 to 3 years' imprisonment, but advised him that a higher sentence would be imposed if his challenge were unsuccessful.

At the ensuing predicate felony hearing, the People submitted an accusatory instrument filed by the County Prosecutor of Burlington County, New Jersey, charging defendant with committing third degree burglary under New Jersey Statutes Annotated § 2C:18-2. * This instrument alleged that defendant had "commit[ted] an act of burglary by breaking and entering [certain premises] * * * with the intent to commit a theft". Defense counsel argued that defendant's conviction under this charge should not lead to his adjudication as a second felony offender, since the New Jersey penal statute treats unlawful entries with intent to commit any "offense" as burglaries while the New York felony burglary provisions require intent to commit a "crime." After reserving decision, the trial court rejected defendant's arguments and found that his prior New Jersey burglary conviction was "of such a nature" that it qualified as a predicate felony. Defendant was thereafter sentenced, as a second felony offender, to a term of 2 to 4

Page 467

years' imprisonment. The Appellate Division affirmed with a brief memorandum opinion in which it concluded that the "intent to commit an offense" referred to in New Jersey Statutes Annotated § 2C:18-2(a) was the equivalent of the "intent to commit a crime" required by the New York burglary provisions (144 A.D.2d 242, 243, 533 N.Y.S.2d 435).

On defendant's appeal to this court, the People concede that the Appellate Division's analysis, which was not suggested by either party in the argument before that court, was "invalid" and should not be followed. Instead, the People rely on their own comparison of New Jersey's and New York's penalty systems, noting that even the lowest "offenses" in New Jersey are punished with maximum jail terms of 30 days and that New York authorizes 30-day sentences only for misdemeanors and felonies. These facts, according to the People, compel the conclusion that a New Jersey "offense" is the equivalent of a New York "crime" as defined in Penal Law § 10.00(6), making the "intent to commit an offense" element of the New Jersey crime of third degree burglary the equivalent of the "intent to commit a crime" required for burglary in New York. Alternatively, the People contend, even if the New Jersey and New York burglary provisions have somewhat different statutory elements, the crime of which defendant was convicted is [548 N.Y.S.2d 635] the equivalent of the New York felony because, as evidenced by the underlying accusatory instrument, he was charged in New Jersey with breaking and entering "with intent to commit a theft," conduct which invariably constitutes a "crime" under New York law (see, Penal Law §§ 155.25-155.42). We now reject both arguments and reverse.

Penal Law § 70.06 requires the imposition of enhanced sentences for those found to be predicate felons. In determining whether a particular defendant has earned this label, the court's analysis must begin with Penal Law § 70.06(1)(b)(i), which includes in the definition of a predicate felon one who has been convicted in another jurisdiction of "an offense for which a sentence to a term of imprisonment in excess of one year * * * was authorized and is authorized in this state irrespective of whether such sentence was imposed" (emphasis supplied). Since New York authorizes sentences exceeding one year only for felonies, the second prong of this statutory test requires an inquiry to determine whether the foreign conviction has an equivalent among New York's felony-level crimes.

As a general rule, this inquiry is limited to...

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