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Court grants the motion to set aside the sentence

This is a proceeding wherein the defendant, AS, seeks to vacate the second felony offender adjudication and the accompanying sentence, both from 12 October 2005 pursuant to C.P.L. 440.20 of this court dated 19 May 2010. The court denied defendant’s motion. The defense has filed a motion to re-argue and to set aside the sentence under C.P.L. § 440.20 and a petition for resentencing under the Drug Law Reform Act of 2009 via an affirmation filed on about 28 May 2010. The People filed a response on 15 June 2010. In addition, extensive oral argument was heard on 30 June 2010. The defense also submitted a letter brief on 1 July 2010.

For the reasons that follow, the Court grants the motion to set aside the sentence and vacates its original decision.

On 21 March 2002, in the Third Circuit Court of Detroit, Michigan, the defendant, AS, was sentenced to two years probation following his plea of guilty to attempted home invasion in the first degree in accordance with Michigan Criminal Law 750.110(a)(2). Defendant was subsequently sentenced to 180 days in jail on 23 February 2004 by the Third Circuit Court of Wayne, Michigan, for violation of probation.

Via a felony complaint dated 22 August 2003, the defendant AS 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. Via an indictment filed on 22 September 2003, defendant AS 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, 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. Thereafter, a warrant was issued for his arrest. On 4 August 2005, the defendant was involuntarily returned on a warrant after he was arrested in Michigan under his alias 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. Defendant pleaded nolo contendere to assault with intent to murder and felony firearms in the Third Judicial Circuit of Michigan, Wayne County, on 24 May 2004. That same day, defendant signed a Pretrial Settlement Offer and Notice of Acceptance in Michigan.
On 14 June 2004, the 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, with his attorney, BS. At that time, BS indicated that the prosecutor had provided a statute for breaking and entering in Michigan which appears to be the same as our burglary statute. Further, BS attested that the defendant understood that he would be receiving a sentence of 4 ½ to 9 years, concurrent with the aforementioned Michigan sentence. The defendant was then arraigned on a predicate felony information which specified the predicate felony to be the attempted home invasion charge set forth above.

AS was notified by the court clerk that he could challenge any allegation in the statement on the ground that the conviction was unconstitutionally obtained. Failure to challenge any previous conviction in the statement at that time constitutes a waiver on is part of any claim of unconstitutionality. Following this statement by the court clerk the defendant stated that he did not wish to challenge any allegation in the statement.

Based on his 2002 Michigan conviction of attempted home invasion in the first degree, the defendant was then sentenced as a second felony offender to 4 ½ to 9 years incarceration to run concurrently with the Michigan case. On 19 March 2010, defendant filed with this Court a combined motion to set aside his sentence under C.P.L. § 440.20 and a petition for resentencing under the DLRA 3.

The court denied defendant’s motion, without a hearing, on 19 May 2010.

However, this court grants defendant’s motion to set aside the sentence on the ground that he was improperly sentenced as a second felony offender. It is his argument that the Michigan statute to which he plead 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. It was established in Wilson v Covington, People v Perron and People v Eason that a criminal defendant may seek such relief at any time after the entry of judgment. In People v De Aga, it was held that 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.

In People v Peron, a case which is quite analogous to the case at bar, the Appellate Division, Third Department, recognized that the defense counsel’s failure to challenge a prior conviction for a sex offense in Vermont resulted in defendant’s improper sentencing as a second felony offender. Accordingly, the Third Department held that it was error to summarily deny the defendant’s 440.20 motion. Also, in People v Capucci, the Appellate Division, Second Department, vacated a prior sentence on the grounds that a second felony offender sentence cannot stand when the prior conviction was not equivalent to a New York felony,

notwithstanding its being raised for the first time in a 440.20 motion.

In this instant case, the defendant is not asserting that his prior conviction was unconstitutionally obtained, only that under Michigan Criminal Law 750.110(a)(2), 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 this case is governed by C.P.L § 400.15 (7)(b), which provides that a defendant who fails to challenge the prior felony at the time of his sentencing waives the issue akin to People v Alvarado and People v Odom. This case does not involve a predicate violent felony and is therefore not governed by C.P.L. § 400.15 (7)(b).
People v Olah dictates the issues regarding a foreign statute’s equivalency to a New York felony. 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 as reiterated in People v Gonzalez.

New York Penal Law § 140.30 states that 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, 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.” 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, the defendant was convicted of attempt in Michigan, yet another reason to grant the defendant’s motion. Accordingly, the defendant cannot be lawfully adjudicated a second felony offender on the basis of his prior conviction for attempted home invasion in Michigan.

The defendant in the case of People v Schaner was convicted as a second felony offender on the basis of prior convictions in Pennsylvania for the offense of burglary of a residence but his sentence was vacated and the case was remanded for resentencing because there was no element in the Pennsylvania statute comparable to the element in the analogous New York statute that an intruder knowingly’ enter or remain unlawfully in the premises. Similarly, in People v Cardona, the Appellate Division, First Department, addressed the issue of whether, on the basis of defendant’s Rhode Island conviction for burglary, he was properly adjudicated a second felony offender for purposes of sentencing in New York. The First Department held that since the Rhode Island law, on its face, does not require proof that the defendant knew his entry was unlawful or without permission and therefore does not constitute a predicate felony conviction New York.

In the case at bar, the court finds it unnecessary 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. The Court of Appeals in People v Muniz established that, as a general rule, this 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. Accordingly, resort to such recitals to ascertain the nature of the crime of which the defendant was convicted has generally been deemed improper.

People v Gonzalez established an exception to this rule and determined 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. The Michigan statute does not render criminal two acts, one a felony and one a misdemeanor. Accordingly, it is not necessary for the Court to analyze the specific facts which constituted the charges against defendant in Michigan.

The court notes that 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 Detroit.
In careful consideration of the facts of the instant case and the standards outlined above, the court grants defendant’s motion to set aside the sentence, on the grounds that his adjudication as a second felony offender was unlawful.

Accordingly, the defendant’s motion to set aside the sentence is granted.

Queens County Criminal Lawyers or Queens County Drug Possession Lawyers at Stephen Bilkis & Associates welcome those who have questions regarding the case mentioned above. You may call our toll free number or visit our place of business for an in depth discussion of the issues involved in this case. A team of experts are ready to give their legal services.

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