People v. Simon
| Decision Date | 13 July 1984 |
| Citation | 479 N.Y.S.2d 294,124 Misc.2d 855 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Allan SIMON, Defendant. |
| Court | New York Supreme Court |
Elizabeth Holtzman, Dist. Atty., Kings County, Brooklyn, N.Y., for the People; James Felix, Brooklyn, N.Y., of counsel.
Jones & Terrell by Theodore Jones, Brooklyn, N.Y., for defendant.
DECISION OF THE COURT
This is a matter of first impression construing whether a defendant's guilty plea in the federal court to two counts of an indictment charging bank robbery and use of a firearm to commit a felony (the bank robbery) can be read together and used in the state court to determine if he is a persistent violent felony offender.
On February 28, 1984 after trial the defendant Allan Simon was found guilty by a jury of attempted murder in the first degree (§ 110.00/125.27 Penal Law) and aggravated assault upon a police officer (§ 120.11 Penal Law) occurring on April 8, 1982 in the County of Kings involving the shooting of Detective William Wright, NYPD.
On April 12, 1984 a hearing was conducted to determine whether the defendant is a persistent violent felony offender as to the latter count of aggravated assault upon a police officer (§ 120.11 Penal Law) based on the federal conviction and two earlier felony convictions in the state court pursuant to Section 400.15 and 400.16 of the CPL. Prior to the hearing, as required by statute, the district attorney filed a statement with the court setting forth the date, place and period of incarceration for each of the defendant's alleged predicate violent felony convictions.
The principal issue raised in this hearing warranting this court's consideration is to determine if the defendant's conviction in the federal court for bank robbery under Title 18, Section 2113(a) of the United States Code () and use of a firearm to commit a felony under Title 18 Section 921(a)(3) and Section 924(c)(1) of U.S.C. constitute a violent felony offense under New York State Law when taken together. If this position is sustained the defendant would have to be sentenced as a persistent violent felony offender in accordance with Sec. 70.08 Penal Law. To resolve if there is any merit to this position the court did examine into the facts and circumstances of the federal conviction.
On August 19, 1975 the defendant appeared in the United States District Court for the Southern District of New York and entered guilty pleas to count one and count three of the indictment 75 Crim. 635. Reference to the indictment and the plea minutes spell out the salient terms of the charges and the pleas entered.
Count one of this indictment charged the defendant on or about May 16, 1975 with knowingly, wilfully and unlawfully taking by force and violence the sum of $12,049.00 from Bankers Trust Company located at 177 East Broadway New York N.Y., which bank was insured by the Federal Deposit Insurance Corporation.
Count two of the indictment charged the defendant in committing the aforesaid act wilfully, and knowingly did assault a person and did put in jeopardy the life of a person by use of a dangerous weapon, to wit, a firearm. (Title 18, U.S.C., Sec. 2113(d)).
Count three of the indictment charged that the defendant unlawfully and knowingly used a firearm to commit a felony, which felony is the one charged in count one--the bank robbery. (Title 18, U.S.C. Sec. 921(a) and 924(c)(1)).
On August 19, 1975 the defendant pled guilty to count one and count three of the indictment before the Honorable Kevin Duffy in the United States District Court of the Southern District of New York. The defendant allocuted to these counts, responding in detail to questions by the judge as follows:
The Defendant: Yes, sir.
The Court: Did you have a gun while you were doing it?
The Defendant: I was in possession of a shotgun at the time of the robbery.
The Court: Were you alone?
The Defendant: No.
The Court: I don't want to know who the other people are. What did you do?
The Defendant: At the particular time of the robbery I had a portfolio case and inside the portfolio case was a sawed-off shotgun. I walked in the bank and walked to the back of the bank where they had the desks, and when I got back there I pulled out the shotgun and told everybody to stand up. At this particular time people that were on the line and at the counter, I told them to move in the back and that was it.
At the time of the plea in federal court the defendant's attorney, Robert Mitchell, Esq. stated to the court (See minutes below) that his client Allan Simon desired to plead guilty to the first and third counts of the indictment but that for reasons of semantics the defendant was disturbed by the contents of count two of the indictment and did not desire to plead to that count. The attorney observed (Pg. 2 and 3 of minutes): "I also explained to him that your Honor would question him as to what he did, and in giving the facts, as he related them to me, to the court, it would be obvious that technically he was guilty of violating count 2, but he still persists in his plea, and I just want to state it for the record."
The defendant asserts that neither of the counts to which he pled guilty in the federal court constitutes a violent felony offense under New York State law. It is his contention that the plea to the bank robbery under count one parallels robbery in the third degree (Penal Law, Sec. 160.05) under New York State law which has not been designated a violent felony offense (People v. Manino, 81 A.D.2d 896, 439 N.Y.S.2d 47). Further, he claims that the guilty plea to the third count of knowingly using a firearm to commit a felony does not make out a violent felony offense under state law.
The defendant reasons that each of the counts must be taken separately and that, therefore, no violent felony offenses can be made out. Standing alone, defendant asserts, each count lacks an essential ingredient making it a violent felony offense.
In this reasoning the defendant is in error. The court is warranted in construing the facts and the law so as to take into consideration the total act perpetrated by the defendant (People v. Dippolito, 88 A.D.2d 211, 214, 452 N.Y.S.2d 655). It is not required to function in a vacuum. The court is justified in looking at the entire course of conduct of the defendant and evaluating his full plea in determining whether he committed a violent felony offense. It would be illogical to seek to separate the ingredients of the crimes committed in order to defeat the intent of the legislature to impose additional punishment on persons found to commit repeated violent crimes. The deed committed has to be read as a single act in harmony with the full plea entered by the defendant. The minutes of the plea clearly show that this defendant entered the Bankers Trust Company, displayed a sawed-off shotgun, and robbed the bank of approximately $12,400.00.
While he pled to two separate counts in admitting his culpability, the defendant acknowledged through the allocution that what he did was one single act--bank robbery with a deadly weapon. It would be sophism to adopt any other conclusion. This is reinforced by reading the portion of the plea minutes (pp. 3 & 5) where the defendant admitted using a firearm to commit a felony, namely the bank robbery. The court is entitled to evaluate this admission in the most logical light in reaching a just result. No court is ever required to distort the truth or use a strained application of facts in coming to a decision. The defendant should not be permitted to escape the enhanced punishment of the law as to the finding of guilty on the charge of aggravated assault on a police officer through a legal subterfuge.
The provisions of the law (Penal Law, § 5.00) "must be construed according to the fair import of their terms to promote justice and effect the objects of the law." This principle of law authorizes the court to employ reasonable interpretations of the law and to avoid strained or over-technical constructions of the penal statutes (People v. Gottlieb, 36 N.Y.2d 629, 370 N.Y.S.2d 884, 331 N.E.2d 670; Matter of Onondaga County District Attorney's Office, 92 A.D.2d 32, 459 N.Y.S.2d 507).
Applying this rule to the matter before the court adduces the conclusion that the court is warranted in treating the two counts of the indictment to which the defendant pled guilty as a single act in determining if the defendant is a persistent violent felony offender. To do otherwise would lead to a result involving a hypertechnical interpretation of the statute, defeating the ends of justice.
In applying the statute the court must be allowed to use its discretion and common sense in interpreting it. In People v. Ditta, 52 N.Y.2d 657, 660, 439 N.Y.S.2d 855, 422 N.E.2d 515, the Court of Appeals expressed it cogently:
Initially, it should be emphasized that the common law policy of strictly construing a penal code no longer obtains in this state. The Legislature expressly abolished that rule, and ordained instead that the provisions of the Penal Law be interpreted 'according to the fair import of their terms to promote justice and effect the objects of the law.' (Penal Law, § 5.00) Although this rule obviously does not...
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...459 N.Y.S.2d 507. See also PL § 5.00; People v. Teicher, 52 N.Y.2d 638, 647, 439 N.Y.S.2d 846, 422 N.E.2d 506; People v. Simon, 124 Misc.2d 855, 859-860, 479 N.Y.S.2d 294.) It should be noted that the lower court had initially found the Grand Jury report to be "... supported by a prepondera......