People v. Morse
| Decision Date | 17 May 1984 |
| Citation | 465 N.E.2d 12,476 N.Y.S.2d 505,62 N.Y.2d 205 |
| Parties | , 465 N.E.2d 12 The PEOPLE of the State of New York, Respondent, v. James MORSE, Appellant. The PEOPLE of the State of New York, Respondent, v. Curtis COVINGTON, Appellant. The PEOPLE of the State of New York, Respondent, v. Saul VEGA, Appellant. The PEOPLE of the State of New York, Respondent, v. Thomas FRANK, Appellant. The PEOPLE of the State of New York, Respondent, v. Jack JOHNSON, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Both the second violent offender law and the persistent violent offender law require imposition of enhanced punishment upon conviction as a second or persistent violent felony offender, even though at the time of the prior conviction on which enhanced punishment is based the prior crime was not classified as a violent felony offense. So to construe the statutes involves no violation of the constitutional proscription upon ex post facto laws. Nor, under those statutes, where the predicate offense is only so classified because it occurs after a plea of guilty to a lesser included offense, is there any statutory infirmity in the failure to recite in the information that the prior conviction was obtained upon a plea of guilty or any constitutional defect because the same offense would not be classified as a violent felony if conviction had been obtained after trial. The Legislature did not intend the persistent violent felony offender law to apply, however, unless each of the two or more predicate violent felony convictions other than the first was for a felony which occurred after sentence had been imposed for the conviction which preceded it. In People v. Morse, 91 A.D.2d 1209, 458 N.Y.S.2d 967, and People v. Frank, 97 A.D.2d 682, 467 N.Y.S.2d 464, the orders of the Appellate Division should, therefore, be modified by substituting for the persistent violent felony offender adjudication a second violent felony offender adjudication and remitting for resentence and, except as so modified, should be affirmed. In each of the other three cases, the order of the Appellate Division should be affirmed.
These five appeals all concern the provisions for mandatory enhanced prison sentences of violent felony offenders established by article 70 of the Penal Law. 1 Each of the defendants has been convicted as either a second violent felony offender (Penal Law, § 70.04) or as a persistent violent felony offender (Penal Law, § 70.08) and, though not questioning that the present conviction is for a violent felony offense, each contests 2 the determination that one or more of his prior convictions was for a predicate violent felony offense. The relevant facts may be briefly stated.
James Morse, Thomas Frank and Saul Vega were each adjudicated a persistent violent felony offender; Curtis Covington and Jack Johnson were sentenced as second violent felony offenders. Morse's two prior convictions were both for robbery in the first degree and resulted from his pleas of guilty on one day 3 to two separate indictments in satisfaction of some 17 separate incidents occurring in 1972 and 1973. He was sentenced on a single day in 1974 to concurrent prison sentences on the two indictments. Frank's prior convictions were for burglary in the second degree and robbery in the second degree. Although those charges arose from separate incidents, Frank pleaded guilty to both on the same day and on March 29, 1978, concurrent prison sentences were imposed on the basis of those pleas. Robbery in the first and second degrees and burglary in the second degree were classified as violent felony offenses when section 70.02 of the Penal Law was enacted in 1978 (L.1978, ch. 481, § 3, eff. Sept. 1, 1978).
Vega's, Covington's and Johnson's predicate convictions were all for attempted criminal possession of a weapon in the third degree. 4 In none of the three cases, however, did the persistent or predicate violent felony information specify that the conviction had been obtained after a plea of guilty to a lesser included offense. Vega was sentenced on the first predicate conviction on November 10, 1975 and on the second on April 24, 1979. Covington's prior conviction occurred in 1978 and Johnson's in 1973. Attempted criminal possession of a weapon in the third degree was classified as a violent felony by 1980 amendment to section 70.02 of the Penal Law ). Thus, all of the predicate convictions involved in these cases antedated the effective date of the statute classifying the crime on which the conviction was based as a violent felony offense.
The legal issues thus presented for our determination are: (1) whether the Legislature intended that a crime not classified as a violent felony offense when committed should constitute a predicate violent offense and, if so, whether enhancement of the punishment for the present violent crime on the basis of such a predicate crime violates the constitutional proscription against ex post facto laws; (2) whether the Legislature intended that the two or more predicate violent felony offenses required under the persistent violent felony offender law as the predicate for enhanced punishment under that statute be determined individually (i.e., by the separate crimes committed without regard to the fact that convictions may have been jointly obtained), or sequentially (i.e., so that the second offense, to be counted as a predicate must be committed after sentence was imposed on the first); (3) whether there is any due process violation in the fact that under section 70.02 (subd. 1, par. ) attempted criminal possession of a weapon is a violent offense only when conviction results from a guilty plea; and (4) whether a predicate felony information which does not specify that a prior conviction of attempted criminal possession of a weapon in the third degree was obtained on a plea of guilty to a lesser included offense is insufficient. 5
That the Legislature intended the enhanced punishment provisions of sections 70.04 and 70.08 of the Penal Law to apply when the prior crime was committed between September 1, 1967 (the effective date of the present Penal Law) and September 1, 1978 (the effective date of the violent offender law ) is evidenced by the provisions of section 70.04 (subd. 1, par. ) of the Penal Law. 6 In six separately numbered clauses that paragraph establishes the criteria by which to determine whether a prior conviction is a predicate violent felony conviction. Two of those criteria are of significance on the present question. Clause (i) enumerates four categories of convictions which may qualify as predicate violent felony offenses: class A felonies other than drug offenses, violent felony offenses as defined in subdivision 1 of section 70.02, offenses defined by the Penal Law in effect prior to September 1, 1967 which contain all the essential elements of such a felony, and convictions in other jurisdictions of an offense including all the essential elements of such a felony for which a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this State. Clauses (iv) and (v) exclude felonies for which sentence was imposed more than 10 years prior to the present offense, exclusive of periods of incarceration.
The Legislature has directed that the Penal Law "be construed according to the fair import of terms to promote justice and effect the objects of the law" (Penal Law, § 5.00) and has listed among its general purposes: "To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, and their confinement when required in the interests of public protection" (Penal Law, § 1.05, subd. 6) and "To give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction" (id., subd. 2).
Construing the violent felony offender sections in accordance with those provisions, we find the intent of the Legislature unmistakable, for it has in clause (i) provided for retroactive application of the sections to class A felonies; to offenses committed prior to September 1, 1967; and to offenses committed in other jurisdictions. It is, therefore, inconceivable that the Legislature intended to exclude from the predicate crime category crimes committed in New York between September 1, 1967 and September 1, 1978, but not the identical crimes committed prior to September 1, 1967 or committed in another State. That retroactivity was intended is also strongly suggested by clauses (iv) and (v), made effective as...
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