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Defendant Contends Violation of Drug Reform Act

The Facts:

On 21 March 2002, defendant was sentenced in Michigan to a two-year probation following his plea of guilty to attempted home invasion in the first degree under Criminal Law.

A New York Criminal Lawyer said that on 22 August 2003, defendant was charged in Bronx County with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees, respectively.

On 22 September 2003, defendant was charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

On 22 October 2003, defendant plead guilty to criminal sale of a controlled substance in the third degree with the promise that upon the completion of a drug rehabilitation program, supervised by Treatment Accountability for Safer Communities (“TASC”), he would be allowed to withdraw his plea of guilty. In that event, defendant would re-plead to a misdemeanor and receive a sentence of time served. If, however, defendant failed to complete the program, the court promised to sentence him to 4 ½ to 9 years in jail.

On 4 December 2003, defendant was released from custody on condition that he enters and remains in a drug program. Less than one week later, the court received information that defendant had left the program without permission and a warrant was issued for his arrest.

On 4 August 2005, defendant was involuntarily returned on a warrant with his arrest in Michigan and indicted on the following charges: assault with intent to murder, assault with intent to do great bodily harm less than murder and assault with a dangerous weapon. On 24 May 2004, defendant pleaded nolo contendere to assault with intent to murder and felony firearms. That same day, defendant signed a Pretrial Settlement Offer and Notice of Acceptance in Michigan.

On 23 February 2004, defendant was sentenced to 180 days in jail for a violation of the probation.

On 14 June 2004, defendant was sentenced to an indeterminate term of imprisonment of from 2 to 15 years on the count charging assault to murder and to 2 years on the count charging felony firearms, to be served consecutively.

On 15 October 2005, after being involuntarily returned to Bronx Supreme Court after an extradition request, defendant appeared for sentencing. At that time, defendant’s attorney indicated that the prosecutor had provided a statute for breaking and entering in Michigan, which would appear to be the same as our burglary statuefendant’te.; that defendant understood that he would be receiving a sentence of 4 ½ to 9 years, concurrent with the aforementioned Michigan sentence. Defendant was then arraigned on a predicate felony information which specified the predicate felony to be the attempted home invasion charge set forth above.

Thereafter, defendant was notified by the court clerk that he could challenge any allegation in the statement on the grounds that the conviction was unconstitutionally obtained. A Long Island Criminal Lawyer said failure to challenge any previous conviction in the statement at that time was a waiver on defendant’s part of any claim of unconstitutionality. Following such statement by the court clerk, defendant stated that he did not wish to challenge any allegation in the statement.

Subsequently, defendant was sentenced, as a second felony offender, based on his 2002 Michigan conviction of attempted home invasion in the first degree, to 4 ½ to 9 years of incarceration, to run concurrently with the Michigan case.

On 19 March 2010, defendant filed with the herein Court a combined motion to set aside his sentence and a petition for resentencing; to vacate the second felony offender adjudication and the accompanying sentence, both from 12 October 2005.

On 19 May 2010, the herein Court denied the motion, without a hearing.

Defendant moves to re-argue and set aside the sentence on the ground that he was improperly sentenced as a second felony offender; and a petition for resentencing under the Drug Law Reform Act of 2009.

The Ruling:

Here, a Suffolk County Sex Crimes Lawyer said that the defendant argues that the Michigan statute to which he pleaded guilty does not constitute a felony under New York Law. Notwithstanding the fact that defendant did not raise any challenges to his status as a second felony offender at the time of sentencing, the Criminal Procedure Law recognizes illegality as a basis for setting aside a sentence. Thus, a criminal defendant may seek such relief at any time after the entry of judgment.

As a matter of discretion and in the interest of justice, a judge may vacate a plea if the record reflects that a defendant was wrongly adjudicated as a second felony offender based on a felony conviction in another forum that would not constitute a felony under New York Law despite the fact that defendant failed to challenge his status as a second felony offender at the time of sentencing.

Defendant is not asserting that his prior conviction was unconstitutionally obtained, only that under Michigan Criminal Law, his conviction for attempted home invasion in the first degree was not equivalent to any New York felony under the Penal Law, and therefore his sentence, based on his status as a second felony offender, was unlawful.

The People argue that a defendant who fails to challenge a prior felony at the time of his sentencing waives the issue. However, the case herein does not involve a predicate violent felony and is therefore not governed by such rule.

Issues regarding a foreign statute’s equivalency to a New York felony are dictated by the case of Olah. Under the Olah test, to determine whether a foreign crime is equivalent to a New York felony, the court must examine the elements of the foreign statute and compare them to an analogous Penal Law felony, for it is the statute upon which the indictment was drawn that necessarily defines and measures the crime.

Under the New York Penal Law, a person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling. The comparable Michigan statute, under which defendant was convicted, reads in relevant part, that a person is guilty of home invasion in the first degree if they break or enter with intent to commit a felony in the dwelling.

In the instant case, the Michigan home invasion offense is not the equivalent of burglary in the first degree under New York Law, since, unlike the New York statute, the Michigan statute does not require a person to knowingly enter a dwelling. In addition, defendant was convicted of attempt in Michigan; another reason to grant the defendant’s motion. Thus, defendant cannot be lawfully adjudicated a second felony offender on the basis of his prior conviction for an attempted home invasion in Michigan.

Further, it is not necessary, as argued by the People, to look beyond the statute to defendant’s specific actions when committing the crime which was the basis for his Michigan attempted home invasion conviction.

As a general rule, such 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. Thus, resort to such recitals to ascertain the nature of the crime of which the defendant was convicted has generally been deemed improper.

The exception to the rule is that it is only necessary to go beyond the statute and analyze an accusatory instrument in the foreign jurisdiction where the statute renders criminal not one, but several acts which, if committed in New York, would in some cases be felonies and in other would constitute only misdemeanors.

In the case at bar, the Michigan statute does not render criminal two acts, one a felony and one a misdemeanor. Thus, it is not necessary for the Court to analyze the specific facts which constituted the charges against defendant in Michigan.

In any event, the Second Felony Drug Offender Information was defective inasmuch as it alleged that defendant was convicted of Home Invasion in the First Degree, when, in fact, defendant was convicted of Attempted Home Invasion in the First Degree.

In conclusion, defendant’s motion to set aside the sentence is granted on the ground that his adjudication as a second felony offender was unlawful.

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