People v. Dippolito

• Decision Date: 26 July 1982
• Citation: People v. Dippolito, 88 A.D.2d 211, 452 N.Y.S.2d 655 (N.Y. App. Div. 1982)
• Parties: The PEOPLE, etc., Respondent, v. Salvatore DIPPOLITO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 655

452 N.Y.S.2d 655

88 A.D.2d 211

The PEOPLE, etc., Respondent, v.Salvatore DIPPOLITO, Appellant.

Supreme Court, Appellate Division Second Department.

July 26, 1982.

Washor & Washor, New York City(Michael Washor and Barry Washor, New York City, of counsel), for appellant.

Thomas R. Sullivan, Dist. Atty., Staten Island (George E. McVay and Anthony L. Galante, Staten Island, of counsel), for respondent.

Before MOLLEN, P. J., and GULOTTA, BROWN and NIEHOFF, JJ.

NIEHOFF, Justice.

The issue on these appeals is whether the sentencing court properly used the defendant's 1972 California burglary conviction as a predicate offense for second felony offender treatment in light of the fact that at the time of his sentencing in this State said burglary conviction was denominated a misdemeanor under California law.We hold that it did.

By two separate indictments defendant was charged with the crimes of robbery in the first degree, robbery in the second degree, grand larceny in the third degree, criminal possession of a weapon in the second degree and criminal use of a firearm in the first degree.Ultimately he pleaded guilty to two counts of robbery in the first degree in full satisfaction of both indictments.

Before accepting the defendant's guilty pleas Criminal Term explained to the defendant that there was a question as to whether his 1972 California burglary conviction would be considered a predicate felony offense for sentencing purposes and the court indicated to the defendant its intention of imposing concurrent four-to-twelve year terms if he was a first felony offender and concurrent six-to-twelve year terms, the minimum permissible sentences, if he was found to be a second felony offender.

On October 26, 1981, following a hearing, the defendant was found to be a second felony offender.Accordingly, he was sentenced, pursuant to section 70.06 of the Penal Law, to concurrent six-to-twelve year terms of imprisonment.

On these appeals, defendant contends that he was erroneously sentenced as a second felony offender because the 1972 conviction was classified as a misdemeanor under California law.The defendant also claims that to treat the California conviction as a felony for second felony treatment purposes would be to impose upon him an additional penalty under a statute not in existence when the predicate offense was committed and would materially alter the term of imprisonment to be imposed upon him.In short, defendant argues that to sentence him as a second felony offender would be to violate the constitutional ban against ex post facto legislation.We find no merit in either contention advanced by defendant.

In 1972the defendant was accused of violating section 459 of the California Penal Code, burglary in the second degree, in that he did "wilfully, unlawfully and feloniously enter a residence, in the possession of and under the control of Helen Penniman located at 1419 Emerald Bay, Laguna Beach, with intent to commit theft".On March 2, 1972the defendant executed a written plea of guilty to the felony charge of burglary in the second degree with a promise of a suspended three-year sentence, formal probation and six months actual jail time.The writing, which was countersigned by his California attorney, stated that the defendant was aware that the charge carried a possible 1 to 14-year term of imprisonment in a California penitentiary and that he admitted the factual basis of the crime as charged.

In 1972, burglary in the second degree was punishable in California by "imprisonment in the county jail not exceeding one year or in the state prison for not less than one year or more than 15 years"(West's Cal.Penal Code, § 461, subd. 2).Under California Law burglary in the second degree is a felony and remains a felony until "a judgment imposing a punishment other than imprisonment in the state prison" is imposed at which time the crime is a misdemeanor (West's Cal.Penal Code, § 17, subd. par. ).Moreover, a number of California cases have held that upon sentence to a County Jaila defendant's conviction for a violation of section 459 of the Penal Code is deemed a misdemeanor conviction for all purposes thereafter (People v. Hamilton, 33 Cal.2d 45, 198 P.2d 873;People v. Johnson, 236 Cal.App.2d 62, 45 Cal.Rptr. 619;People v. James, 40 Cal.App.2d 740, 105 P.2d 947;People v. Williams, 27 Cal.2d 220, 163 P.2d 692 ).In other words, burglary in the second degree in California is an alternate felony-misdemeanor, dependent upon the sentence actually imposed by the court, which in the defendant's case was a misdemeanor sentence.Because he received a misdemeanor sentence the defendant contends that the State of New York is foreclosed from considering the California "misdemeanor" conviction as a predicate felony offense in imposing sentence upon him for his current criminal escapades.

Although that argument possesses surface appeal, it will not withstand close analysis.Its principal weakness is that it ignores the unambiguous language of section 70.06 of the New York Penal Law and the clear purpose behind said section of providing for increased punishment of those who commit more than one serious penal offense.

Section 70.06 deals with increased punishment for those defendants who have been "subjected to one or more predicate felony convictions"(Penal Law, § 70.06, subd. 1, par. ).In order for a prior conviction outside of New York State to qualify as a predicate felony conviction under section 70.06 (subd. 1, par. cl. ) of the Penal Law the conviction "must have been * * * in any other 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."Thus,...