People v. Muniz

• Decision Date: 21 November 1989
• Citation: 547 N.E.2d 1160,74 N.Y.2d 464,548 N.Y.S.2d 633
• Parties: , 547 N.E.2d 1160 The PEOPLE of the State of New York, Respondent, v. Albion MUNIZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 633

548 N.Y.S.2d 633

74 N.Y.2d 464, 547 N.E.2d 1160

The PEOPLE of the State of New York, Respondent, v. Albion MUNIZ, Appellant.

Court of Appeals of New York.

Nov. 21, 1989.

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.

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 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 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 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 a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes. The allegations contained in the accusatory instrument underlying the foreign conviction may ordinarily not be considered, because such instruments frequently contain nonessential recitals (People v. Olah, 300 N.Y. 96, 98, 89 N.E.2d 329; see, e.g., People v. Spann, 56 N.Y.2d 469, 452 N.Y.S.2d 869, 438 N.E.2d 402). Since recitals that go beyond the statutorily required elements are not necessary to the determination of guilt, there can be no assurance that such allegations played any actual part in the foreign conviction (see, People ex rel. Goldman v. Denno, 9 N.Y.2d 138, 142, 211 N.Y.S.2d 403, 172 N.E.2d 663). Accordingly, resort to such recitals to ascertain the nature of the crime of which the defendant was convicted has generally been deemed improper (see, People v. Gonzalez, 61 N.Y.2d 586, 475 N.Y.S.2d 358, 463 N.E.2d 1210).

This analysis is not applicable, however, where the foreign statute under which the defendant was convicted renders criminal several different acts, some of which would constitute felonies and others of which would constitute only misdemeanors if committed in New York (id., at 590-591, 475 N.Y.S.2d 358, 463 N.E.2d 1210). In such cases, the recitals in the accusatory instrument that describe the particular act or acts underlying the charge are necessary to the extent that they isolate and identify the statutory crime of which the defendant was accused. 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)(i) has been satisfied (see, People ex rel. Gold v. Jackson, 5 N.Y.2d 243, 246, 183 N.Y.S.2d 799, 157 N.E.2d 169).

A comparison between the facts in People v. Olah (supra) and those in People v. ex rel. Gold v. Jackson (supra) illustrates the point. In Olah, the defendant had been charged with stealing property valued at $200 and convicted under a foreign felony provision that applied to any theft of property valued at more than $20. At that time, New York's threshold for felonious larceny was $100. Although the foreign accusatory instrument alleged facts which, if proven, would also establish that this threshold had been satisfied, this court declined to permit consideration of those allegations, because the defendant could have been found guilty of the foreign crime regardless of the amount by which the stolen property's value exceeded $20 and, thus, the "ensuing judgment * * * signified only (1) that Olah had stolen money or property and (2) that the amount involved was at least $20." (300 N.Y., at 100, 89 N.E.2d 329, supra.)

In People ex rel. Gold v. Jackson (supra), in contrast, the relator had been charged under a foreign statute that classified both "breaking in" and "breaking out" as felony burglaries at a time when New York treated only the former act as a felony. In those circumstances, this court approved resort to the recitals in the foreign accusatory instrument to establish which of those discrete, mutually exclusive acts formed the basis of the charged crime. Significantly, such consideration was necessary to enable the court to identify the precise crime of which the relator had been convicted and to ascertain its statutory elements, so that it could resolve whether the foreign crime was, in fact, the equivalent of a New York felony.

Applying these principles to the facts in the present case, we conclude that the statutory elements of the New Jersey crime of which defendant was convicted, which requires an intent to commit any "offense," differ materially from the elements of its closest New York analog, third degree burglary, which requires an intent to commit a "crime" (Penal Law § 140.20). It is undisputed that New Jersey's definition of "offense" includes all acts that are subject to criminal punishment in that State, including some that are the equivalent of petty offenses or violations in New York (NJ Stat Annot § 2C:1-4[a], [b]; § 2C:1-14[k]; compare, § 2C:33-2, with Penal Law § 240.20). In contrast, the "crimes" referred to in Penal Law §§ 140.20-140.30 encompass only felonies and misdemeanors (see, Penal Law § 10.00[6]. Thus, it is possible to violate the New Jersey third degree burglary provisions, i.e., by acting with the intent to commit a petty offense, without necessarily acting with the level of intent required for a felonious burglary in New York.

Further, in determining whether a foreign crime is the equivalent of a New York felony, it is the conduct, rather than the...