        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

853
KA 09-02028
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CLEMON JONES, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Monroe County Court (Richard A. Keenan, J.), dated August 26,
2009. The order denied the motion of defendant to set aside his
sentence pursuant to CPL 440.20.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from an order that denied his
motion pursuant to CPL 440.20 seeking to vacate the sentence imposed
upon his conviction of two counts of criminal possession of a forged
instrument in the second degree (Penal Law § 170.25). We reject
defendant’s contention that the sentence was “unauthorized, illegally
imposed or otherwise invalid as a matter of law” (CPL 440.20 [1]).
Contrary to the contention of defendant, we conclude that he was
properly adjudicated a persistent felony offender. With respect to
the sufficiency of County Court’s order, we agree with defendant that
the court’s statement that it denied defendant’s motion “for the
reasons set forth in the People’s response” was insufficient to
satisfy the requirements of CPL 440.30 (7) (see generally People v
Isaacs, 71 AD3d 1162, 1162; People v Williams, 184 AD2d 608, 608; cf.
People v Watkins, 79 AD3d 1648, 1648-1649, lv denied 16 NY3d 800). We
nevertheless conclude that the record is sufficient to enable us to
intelligently review the order denying defendant’s motion (see People
v Dover, 294 AD2d 594, 595, lv denied 98 NY2d 767; People v Neely, 219
AD2d 444, 446, lv denied 88 NY2d 1023; see generally CPL 470.15 [1]).
We therefore decline to hold the matter and to remit it for a
statement in accordance with CPL 440.30 (7), particularly in light of
the fact that the County Court judge who originally heard the motion
has since retired (see Dover, 294 AD2d at 594).
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     With respect to the merits, the persistent felony offender
statute (Penal Law § 70.10), permits a sentencing court to impose the
prison term authorized for a class A-1 felony (a minimum of 15 to 25
years and a maximum of life) upon a defendant who is convicted of a
felony after having been previously convicted of two or more felonies,
as defined by the statute (see §§ 70.00 [2] [a]; [3] [a] [i]; 70.10
[1] [a], [2]; People v Vincent, 105 AD2d 468, 469; see also Griffin v
Mann, 156 F3d 288, 290-291). The statute defines a “previous felony
conviction” as “a conviction of a felony in this state, or of a crime
in any other jurisdiction, provided: (i) that a sentence to a term of
imprisonment in excess of one year, or a sentence to death, was
imposed therefor; and (ii) that the defendant was imprisoned under
sentence for such conviction prior to the commission of the present
felony; and (iii) that the defendant was not pardoned on the ground of
innocence; and (iv) that such conviction was for a felony offense
other than persistent sexual abuse” (§ 70.10 [1] [b] [emphasis
added]). Once it has been determined that a defendant is a persistent
felony offender, the court may sentence defendant as such “when it is
of the opinion that the history and character of the defendant and the
nature and circumstances of his criminal conduct indicate that
extended incarceration and life-time supervision will best serve the
public interest” (§ 70.10 [2]; see Griffin, 156 F3d at 290-291).

     Here, it is undisputed that defendant was “sentence[d] to a term
of imprisonment in excess of one year” on each of the two federal
convictions at issue (Penal Law § 70.10 [1] [b] [i]). Thus, under the
plain language of the statute, the federal convictions qualify as
“previous felony conviction[s]” within the meaning of section 70.10
(1) (b) (see People v Griffin, 168 AD2d 972, 972, lv denied 77 NY2d
906). Defendant, however, contends that we should impose a
requirement that foreign felonies used to support persistent felony
offender status must have a New York equivalent. We reject that
contention. Defendant primarily relies upon cases interpreting the
second felony offender statute, which contains a different definition
of a predicate felony (see Griffin, 156 F3d at 290; compare § 70.06
[1] [b] [i] with § 70.10 [1] [b] [i]). Under the second felony
offender statute, in order to constitute a “predicate felony
conviction,” “[t]he conviction must have been in this state of a
felony, or in any other jurisdiction of an offense for which a
sentence to a term of imprisonment in excess of one year or a sentence
of death was authorized and is authorized in this state irrespective
of whether such sentence was imposed” (§ 70.06 [1] [b] [i] [emphases
added]).

     As the Court of Appeals explained in People v Gonzalez (61 NY2d
586), “[f]or purposes of sentencing [under the second felony offender
statute], a prior out-of-State conviction is a predicate felony
conviction in New York when the foreign conviction carries with it a
sentence of imprisonment in excess of one year and a sentence in
excess of one year is also authorized for the offense in this State .
. . Because New York only permits terms of imprisonment in excess of
one year for felony convictions, the statute requires that the
conviction be for a crime whose elements are equivalent to those of a
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                                                         KA 09-02028

New York felony” (id. at 589 [emphasis added]; see People v Muniz, 74
NY2d 464, 467; see also People v Iliff, 96 AD3d 974, 975).

      The persistent felony offender statute, however, contains no
language requiring that the underlying out-of-state conviction be for
a crime that would constitute a felony in New York, i.e., “an offense
for which a sentence to a term of imprisonment in excess of one year
may be imposed” (Penal Law § 10.00 [5]), or that the elements of the
foreign crime be equivalent to the elements of a New York crime (see §
70.10 [1] [b] [i]). Rather, as noted by the Second Circuit in
upholding the constitutionality of the persistent felony offender
statute, “[s]ection 70.10 (1) (b) does not distinguish among felony
convictions that arise under federal, New York State, or out-of-state
law. Thus, if the acts constitute a felony under federal or another
state’s law, they will be deemed a felony for purposes of persistent
offender status under [s]ection 70.10 even if there is no counterpart
felony in New York law. By contrast, under [s]ection 70.06, the
underlying acts of a federal or out-of-state felony must be recognized
as a felony in New York to qualify as a predicate felony” (Griffin,
156 F3d at 290 [emphasis added]; see People v Ortiz, 180 Misc 2d 783,
789).

     Further, the legislative history of the persistent felony
offender statute reflects that the drafters specifically considered
and rejected the contention advanced by defendant (see Griffin, 156
F3d at 291). According to the drafters, “[u]nder the proposed
provision a conviction of a ‘crime’ in any other jurisdiction will be
counted, irrespective of whether such crime would have been a felony
in this state. The test would be whether the offender was actually
imprisoned under a sentence with a term in excess of one year or under
a commuted death sentence. Pursuant to existing law, the test is
whether the crime would have been a felony in New York State. This is
an extremely difficult rule to administer. It involves a myriad of
complex distinctions and, moreover, it may often mandate rejection of
substance for highly technical reasons . . . It is true that the
proposed test permits the court to base a persistent offender sentence
upon a prior out of state conviction for an act which, if committed
here, would be a misdemeanor or would not even be a crime. But there
is certainly nothing unjust or illogical in permitting the court to
consider the prevailing norms in the jurisdiction where the act was
committed . . . Moreover, certain serious Federal crimes are not
crimes under the laws of this State. The discretionary feature allows
the court to weigh the substance of the foreign conviction and
consider all of the circumstances. This will provide fairness to the
offender and protection for the public” (Staff Notes of Temp St Commn
on Rev of Penal Law and Crim Code, 1964 Proposed NY Penal Law [Study
Bill, 1964 Senate Intro 3918, Assembly Intro 5376] § 30.10 at 285
[emphases added]).

     Although defendant cites several cases from the Third Department
that support his contention that foreign felonies used to support
persistent felony offender status must have a New York equivalent (see
People v Trudo, 153 AD2d 993, 994-995; People v Gill, 109 AD2d 419,
                                 -4-                           853
                                                         KA 09-02028

420-422; see also People v Morton, 48 AD2d 58, 59-60), we decline to
follow those cases. The Third Department cases trace back to Morton
(48 AD2d at 59), in which that court held that a former version of the
second felony offender statute—Penal Law § 70.06 (former [1] [b]
[i])—was unconstitutional as applied to the defendant because it
denied him equal protection and resulted in the delegation of
legislative authority to other jurisdictions in violation of article
III, § 1 of the New York State Constitution. That version of the
statute provided in pertinent part that, “to be a predicate felony, a
prior conviction in a jurisdiction other than New York must have been
for an offense for which a term of imprisonment in excess of one year
or a sentence of death was authorized, irrespective of whether such
sentence was imposed” (Morton, 48 AD2d at 59-60; see People v Parker,
41 NY2d 21, 23 n 2). The Third Department reasoned that the
application of that definition would deprive defendants with prior
out-of-state convictions of equal protection because, if those
defendants were convicted of “unusual” or arcane crimes in other
jurisdictions, such as vagrancy or blasphemy, the former version of
the second felony offender statute would mandate second felony
offender status for defendants later convicted of a New York felony
(Morton, 48 AD2d at 60). According to the court, that result “would
be purely arbitrary and without a basis in reason,” and the court
noted that, “had defendant fortuitously performed these very same
earlier acts in the State of New York, he would still be entitled to
first offender status upon his sentencing for his subsequent New York
felony conviction” (id.). The Third Department thus declared Penal
Law § 70.06 unconstitutional “insofar as it provides that the extent
of punishment for a convicted New York felon is dependent upon the
authorized sentence for an offense of which he has previously been
convicted in another jurisdiction” (id.).

     After Morton, Penal Law § 70.06 was amended to include language
requiring that the foreign predicate conviction must be for acts that
would constitute a felony under New York law (L 1975, ch 784, § 1; see
Parker, 41 NY2d at 27). Shortly thereafter, however, the Court of
Appeals in Parker (41 NY2d at 24) effectively overruled Morton,
holding that former subdivision (1) of section 70.06 of the Penal Law
was constitutional as applied to the defendant, and that the amendment
was not “constitutionally mandated” (id. at 27). Specifically, the
Court of Appeals held that “the imposition of second felony offender
status upon individuals convicted in other jurisdictions of crimes
which in such other jurisdictions warrant [a] sentence of imprisonment
in excess of one year is rationally related to the valid governmental
aim of treating habitual offenders more severely than first time
offenders” (id. at 25). The Court reasoned that “[t]he [l]egislature,
in enacting the challenged provision, exercised its considered
judgment to provide that the seriousness of a crime should be
determined by the severity of the sentence and the norms prevailing in
the jurisdiction in which a crime was committed . . . The possible
disparity of treatment between prior New York offenders vis-a-vis
prior out-of-State offenders does not vitiate the legislative decision
that an individual who has previously elected to violate the criminal
standards of the society in which he [or she] was found should be
treated as an habitual offender” (id. at 26).
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                                                         KA 09-02028

     In sum, under the clear and unambiguous language of Penal Law §
70.10 (1) (b) (i), a “previous felony conviction” for purposes of the
persistent felony offender statute includes “a crime in any other
jurisdiction, provided . . . that a sentence to a term of imprisonment
in excess of one year . . . was imposed therefor.” Here, defendant
was convicted in federal court of two crimes—knowingly making false
statements on a Bureau of Alcohol, Tobacco & Firearms form (18 USC §
924 [a] [1] [A]) and being a convicted felon in possession of a
firearm (18 USC § 922 [g])—and a sentence of imprisonment of 18 months
was imposed for each conviction. Inasmuch as “defendant received a
sentence in excess of one year on each of [the federal] convictions[,]
they were properly considered for persistent felony offender
adjudication” (Griffin, 168 AD2d at 972). We therefore affirm the
denial of defendant’s motion to set aside his sentence.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
