People v. Duffy

• Decision Date: 06 July 1981
• Citation: 83 A.D.2d 563,441 N.Y.S.2d 15
• Parties: The PEOPLE, etc., Respondent, v. John DUFFY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 15

441 N.Y.S.2d 15

83 A.D.2d 563

The PEOPLE, etc., Respondent, v. John DUFFY, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 6, 1981.

Michael Eisenstein, New York City, for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Eugene H. Scher, Asst. Dist. Atty., Brooklyn, of counsel), for respondent.

Before LAZER, J. P., and MANGANO, GIBBONS and MARGETT, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant, as limited by his brief, from a sentence of the Supreme Court, Kings County, imposed September 9, 1977, upon his conviction of robbery in the third degree, upon a plea of guilty, the sentence being an indeterminate term of imprisonment of two to four years, as a prior felony offender.

Sentence affirmed.

On May 24, 1977 defendant pleaded guilty to the crime of robbery in the third degree. At the sentencing on September 9, 1977, the People requested that defendant be sentenced as a predicate felon based on a prior Federal conviction, dated January 4, 1974, of the crime of possession with intent to distribute barbiturates. Defendant argued that since he had received a suspended sentence of probation for the Federal offense pursuant to the Federal Youth Corrections Act (FYCA) (see U.S.Code, tit. 18, § 5010, subd. that conviction was not a final one and could not constitute a predicate felony in New York. The court rejected the argument and sentenced defendant as a predicate felon.

On this appeal, defendant attacks the legality of the sentence, contending that a conviction pursuant to the FYCA is the functional equivalent of a youthful offender adjudication in New York (CPL art. 720) and, therefore, under the principles set forth in People v. Carpenteur, 21 N.Y.2d 571, 289 N.Y.S.2d 615, 236 N.E.2d 850, the Federal conviction cannot constitute a valid predicate felony. We disagree.

The defendant in Carpenteur was 18 when he was convicted in California of the crime of robbery and remanded to the California Youth Authority in lieu of sentencing. Under California's enforcement of sentence statute, that disposition did not represent a predicate felony. The Carpenteur court reaffirmed that it is the law of New York and not that of the foreign jurisdiction which determines whether a conviction will be considered a predicate felony. It noted, however, that had the California crime been committed in this State, a felony conviction would not necessarily have been the result since the defendant would have been eligible for youthful offender status under New York law as well. In view of defendant's eligibility for such treatment in this State and the similarity of the statutes and their underlying policy considerations, the Carpenteur court held that the California determination would be accorded the same effect as if the adjudication had been pursuant to New York's youthful offender provisions.

The instant case is distinguishable from Carpenteur, however. Under section 5006 (subd. of title 18 of the United States Code, and FYCA disposition is available to youths under the age of 22 years at the time of conviction; defendant was 20 at the time of the Federal offense. In contrast, youthful offender treatment in New York is available to persons between the ages of 16 and 19 at the time the crime was committed. Therefore, and unlike Carpenteur, the current defendant would not have been eligible for youthful offender status had be been prosecuted in New York, and conviction on the charge of possession with intent to distribute barbiturates would have rendered him a felon. In this...