Opinion
1589-2015
10-02-2020
The PEOPLE of the State of New York, Plaintiff, v. Decourcey BELLE, Defendant.
Kami Lizarraga, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, New York 10007 ADA Adam Johnson, Office of the District Attorney, One Hogan Place, New York, New York 10013
Kami Lizarraga, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, New York 10007
ADA Adam Johnson, Office of the District Attorney, One Hogan Place, New York, New York 10013
Miriam R. Best, J.
Defendant moves pursuant to CPL § 440.20 "to set aside his sentences as illegal because the out-of-state conviction used to enhance his sentences involved offenses that are not lawful predicate felonies in New York" (Def Aff ¶ 3). The People oppose, arguing that defendant's Massachusetts convictions were properly used to adjudicate him a second violent felony offender on Indictment No. 1589-2015 and a second felony offender on indictment No. 2667-2016. For the reasons that follow, the motion is denied.
Background
On September 29, 2006, defendant pled guilty in the State of Massachusetts to carrying a firearm without a license, in violation of Massachusetts General Law ("G.L.") chapter 269, § 10(a), and carrying a firearm with ammunition, in violation of GL c. 269, § 10(n) (Def Exh L, p 1). He was sentenced to 18 months on the unlicensed firearm count, to be followed by one year of probation on the loaded firearm count "from and after the sentence served" on the other count (id. pp 2, 3). Defendant had already turned 17 years old when he committed the crimes to which he pled (id. p 1).
Defendant subsequently violated probation and, after a hearing in April 2008, was sentenced to two years in a house of correction (Def Exh L, pp 4-7).
Thereafter, defendant was charged in New York County under Indictment No. 1589-2015 with two counts of Criminal Possession of a Weapon in the Second Degree (PL §§ 265.03[1][b], [3] ) (hereinafter the "first indictment") (Peo's Aff in Opp ¶ 4). After he failed to appear multiple times on the first indictment, he was charged under Indictment No. 2667-2016 with Bail Jumping in the Second Degree (PL § 215.56) (hereinafter the "second indictment") (id. ¶ 5).
On August 16, 2017, defendant's cases were scheduled for possible disposition and "to determine if there were prior contact with Massachusetts that constitutes a violent predicate felony for this case" (Def Exh E p 2). Defendant did not understand how he could be a violent predicate felon in New York since his conviction in Massachusetts "wasn't treated as a violent crime" (id. p 3). Defendant also argued that, because he was 17 years old at the time and served his sentence "in Massachusetts in a division for youth facility," "if there was a way he was granted an equivalent of youthful offender in Massachusetts, he wouldn't be a predicate at all" (id. pp 3, 4). The court, however, ruled that the prior Massachusetts conviction did constitute a prior violent felony for purposes of sentencing in New York and stated that, if the court was incorrect, defendant could appeal the legality of his sentence even if he waived his right to appeal other claims of error (id. pp 2-3, 4, 5-6, 7, 10). On a plea to one count of Criminal Possession of a Weapon in the Second Degree, the court would sentence defendant to seven years in prison and five years' post-release supervision as a predicate violent felony offender (id. p 4, 11). After consulting repeatedly with counsel (id. pp 3, 4, 6, 13), defendant then pled guilty to one count of Criminal Possession of a Weapon in the Second Degree (PL § 265.03[1][b] ) and one count of Bail Jumping in the Second Degree (id. pp 7-8).
Defense counsel conceded at sentencing that "[t]here was no indication that I received from the rap sheet from the district attorney and the paperwork that I received that my client received what remotely looks like a youthful offender treatment in Massachusetts for the crime he was charged with" (Def Exh E, p 3). Defendant has abandoned that claim in the instant motion.
If defendant were not a violent predicate, the court indicated that it would have sentenced him to three and one-half years on the first indictment (id. p 3).
Defendant was arraigned as a predicate as follows:
THE CLERK: Mr. Belle, the district attorney has filed with the Court a statement charging you with being a predicate felon.
Have you received a copy of that statement?
THE DEFENDANT: Yes.
THE CLERK: The statement reads as follows:
On September 29, 2006, in the trial court of Massachusetts, in the State of Massachusetts, the defendant was convicted of carrying a firearm without a license, in violation of C 269S10, subdivision A, carrying a firearm with ammunition, in violation of C 269S10, subdivision N, a sentence including the essential elements of the violent felony, as that term is defined in Penal Law 70.02, subdivision one, for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized in that State, irrespective of whether such sentence was imposed.
Sentence o[n] those convictions was imposed on September 29, 2016.
MR. FISHER: Your Honor, the part of that my client has some issue with, as your Honor is fully aware, the essential elements of the violent felony.
That is to be determined by your Honor and the Appellate Division.
THE COURT: That form, is that accurate?
MR. FISHER: The charges are accurate, correct.
THE DEFENDANT: Yeah.
MR. FISHER: The question we have —
THE COURT: I need him to say that.
Can we go through this. This is going to get confusing for the record.
THE DEFENDANT: I'm not admitting to a violent felony. It was not a violent felony.
MR. FISHER: He is admitting to the statutory.
...
MR. FISHER: He admits to the charges; the fact that somebody else has determined that it is the essential elements of a violent felony, he should not have to admit that. He is contesting that.
THE COURT: Sir, in the State of New York, in the City of New York, do you admit they say that this is a violent felony?
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: You don't agree with that, do you?
THE DEFENDANT: No.
THE COURT: You acknowledge that the New York State and the State of Massachusetts at this time believe that this is a violent felony?
(Defense counsel conferring with defendant.)
MR. FISHER: New York does.
He doesn't know about Massachusetts. I don't know about Massachusetts.
THE COURT: New York acknowledges that?
THE DEFENDANT: Yes.
THE COURT: I will keep the plea.
Can you ask the next question?
THE CLERK: Do you wish to dispute any charge made that that [sic ] predicate statement?
THE COURT: Are you disputing the fact that New York says that this is a violent predicate, but other than that, do you dispute any of the other facts in the predicate statement?
THE DEFENDANT: No.
THE CLERK: Do you admit that you are the person named in that statement?
THE DEFENDANT: Yes.
THE CLERK: Do you wish to challenging [sic ] the constitutionality of the prior conviction?
THE DEFENDANT: No.
...
THE COURT: I deem the defendant to be a violent predicate felon. The defendant disagrees with me.
(Id. pp 14-18.)
On September 8, 2017, defendant was sentenced in accordance with his plea agreement to concurrent terms of seven years' imprisonment to be followed by five years' post-release supervision on the first indictment and one and one-half to three years' imprisonment on the second indictment (Def Exh F pp 4, 5).
It does not appear that defendant ever challenged the legality of his sentence in the Appellate Division.
The Parties' Contentions
Defendant now moves, pursuant to CPL § 440.20(1), to set aside his sentence, arguing that the Massachusetts offenses used to sentence him as a predicate felony offender are not valid predicate felonies in New York (Def Aff ¶ 22). He claims that his
Massachusetts offenses, carrying a firearm without a license and carrying a firearm with ammunition, cannot pass th[e] strict equivalency test because Massachusetts's definition of "firearm" is broader than its New York counterpart [citation omitted]. As a result, the possession of certain weapons not criminalized in New York would result in a Massachusetts felony conviction.... Accordingly, because it "is possible to violate the foreign statute without engaging in conduct that is a felony in New York," [defendant's] Massachusetts offenses "may not serve as a predicate" in New York. People v. Yusef , 19 NY3d 314, 321 (2012).
(Id. )
Defendant also argues that his sentences must be vacated because counsel was "constitutionally ineffective in failing to appropriately challenge his illegal out-of-state predicates" (Def Aff ¶ 23). Specifically, defendant argues that although "counsel objected to the use of [defendant's] Massachusetts conviction as a predicate on other grounds," he erroneously failed to alert either the court or defendant "that the disparity between the two states' definitions of ‘firearm’ rendered the prior conviction not equivalent to any New York felony" (Def Mem p 8). Defendant claims that "the only explanation for [this] failure was a lack of basic research into the elements" of the Massachusetts and New York crimes, establishing that counsel's representation "failed to meet constitutional standards" (id. ).
The People oppose the motion, arguing that the "sole issue raised by the defendant - that Massachusetts' definition of ‘firearm’ is purportedly broader than New York's definition - contradicts decades of Massachusetts caselaw interpreting its statutory framework regulating firearms" (Peo's Aff in Opp ¶ 9). Indeed, according to the People, "decades of caselaw in Massachusetts clearly establish that the definition of ‘firearm’ in Massachusetts is not broader than it is in New York" (Peo's Mem p 6). The People also argue that because defendant's claim of ineffective assistance of counsel is predicated on the erroneous claim that he was not properly adjudicated a second violent felony offender, it must also fail.
In reply, defendant disputes the People's analysis of Massachusetts law and claims that "it was possible under Massachusetts law at the time of [his prior] conviction for a person who was [a] minor to be convicted under § 10(a) and § 10(n) for possessing a weapon not considered a ‘firearm’ in New York" (Def Reply Mem p 8). Defendant states that "notably, at seventeen-years-old, [he] was a minor at the time of his Massachusetts conviction — a key fact that [the People] wholly overlook[ ]" (id. pp 7-8).
Analysis
In determining whether an out-of-state conviction's elements are equivalent to a New York felony, "[the] inquiry is limited to a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes" [citation omitted]. This comparison of the statutes may not consider the factual allegations in the underlying indictments, as "[i]t is immaterial that the crime actually committed in the foreign jurisdiction may be the equivalent of a felony in New York, if the foreign statute would have permitted a conviction for conduct that did not amount to a New York felony" [citation omitted]. The Court of Appeals has interpreted this test as one of "strict equivalency," and has observed that "technical distinctions between the [elements of the] New York and foreign penal statutes can preclude use of a prior felony as a predicate for enhanced sentencing" [citation omitted].
People v. Allison , 167 AD3d 171, 173-74 (1st Dept 2018) (because mens rea element of New Jersey crime of uttering a forged instrument was broader than New York counterpart, statute failed strict equivalency test). See also People v. Yusuf , 19 NY3d 314, 321 (2012) ("When a statute-to-statute comparison reveals differences in the elements such that it is possible to violate the foreign statute without engaging in conduct that is a felony in New York, the foreign statute may not serve as a predicate [citation omitted]."). The Court of Appeals has emphasized that
the strict equivalency test allows a reviewing court to examine a foreign statute that a defendant has been convicted of violating, as well as any foreign statute or case law that informs the interpretation of a foreign code breached by the defendant [citations omitted].
People v. Helms , 30 NY3d 259, 264-65 (2017).
The court may only consider the allegations underlying the foreign conviction when the foreign statute criminalizes several different acts, some of which would constitute felonies and others of which would constitute only misdemeanors, or would not be crimes, if committed in New York. People v. Jurgins , 26 NY3d 607, 613 (2015). That situation is not present here.
Penal Law § 265.00(3) defines a firearm as:
(a) any pistol or revolver; or (b) a shotgun having one or more barrels less than eighteen inches in length; or (c) a rifle having one or more barrels less than sixteen inches in length; or (d) any weapon made from a shotgun or rifle whether by alteration, modification, or otherwise if such weapon is altered, modified, or otherwise has an overall length of less than twenty-six inches; or (e) an assault weapon.
In the "Statement of Predicate Violent Felony Conviction" filed here, the People alleged, in relevant part, that on September 29, 2006,
in the Trial Court of Massachusetts, BMC Department, in the state of Massachusetts, the defendant was convicted of Carrying a Firearm Without a License in violation of c269 s.10(a) and of Carrying a Firearm With Ammunition in violation of c269 s.10(n), offenses which include all of the essential elements of a violent felony, as that term is defined in Penal Law § 70.02(1), 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.
(Def Exh G.) When defendant entered these pleas, G.L. c. 269, § 10(a) punished a person who,
except as provided or exempted by statute, knowingly has in his possession, or knowingly has under his control in a vehicle; a firearm, loaded or unloaded, as defined in section one hundred and twenty-one of chapter one hundred and forty without either:
(1) being present in or on his residence or place of business; or
(2) having in effect a license to carry firearms issued under section one hundred and thirty-one of chapter one hundred and forty; or
(3) having in effect a license to carry firearms issued under section one hundred and thirty-one F of chapter one hundred and forty; or
(4) having complied with the provisions of sections one hundred and twenty-nine C and one hundred and thirty-one G of chapter G of chapter one hundred and forty; or
(5) having complied as to possession of an air rifle or BB gun with the requirements imposed by section twelve B....
"Firearm" was defined in Massachusetts at that time, in relevant part, as a
pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured....
( G.L. c. 140, § 121.)
Defendant argues that the "expansive definition of a ‘firearm’ under Massachusetts law is facially broader than the definition employed by New York," because the New York definition of firearm is limited to "specific enumerated kinds of weapons" (Def Mem pp 4-5.) Defendant claims that
For purposes of § 10(a) and § 10(n), the Massachusetts statute defines a "firearm" as "a pistol, revolver or other weapon of any description , loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured." Mass. Gen. Laws c. 140, § 121 (emphasis added); see Mass. Gen. Laws c. 269, § 10(a) (providing that "firearm," as used in § 10, is "defined in section one hundred and twenty-one of chapter one hundred and forty").
(Id. p 4.) The only example he gives to illustrate how a person could violate the Massachusetts law without violating its New York counterpart is by possession of BB guns and air rifles (id. pp 1, 5). He argues that possession of a BB gun or air rifle is unlawful in New York only when the person is under 16 years old and even then would only constitute a misdemeanor. Defendant correctly argues that under New York law, BB guns and air rifles are not firearms, People v. Boyd , 31 NY3d 953, 956 n. 1 (2018) ("A BB gun is ... not a firearm"); Matter of Michael H. , 38 AD3d 550, 551 (2d Dept 2007) ("An air gun is not a firearm"). He claims, however, that possession of a BB gun or air rifle is punishable under G.L. c. 269, §§ 10(a) and (n) (Def Mem pp 5-6), and that there would be no reason for the exception for compliance with the requirements of § 12B unless BB guns and air rifles were encompassed within the definition of firearm in § 10(a) (Def Mem p 6; Def Reply Mem p 4).The People argue that Massachusetts case law plainly establishes that a BB gun or air rifle is not a firearm within the meaning of G.L. c. 269, §§ 10(a) and 10(n) (Peo's Mem pp 6-8). In support of their analysis, the People cite Commonwealth v. Rhodes , 389 Mass. 641 (1983), Commonwealth v. Fenton , 395 Mass. 92 (1985), Commonwealth v. Sayers , 438 Mass. 238 (2002), and Commonwealth v. Garrett , 473 Mass. 257 (2015).
Under PL § 265.05, "[i]t shall be unlawful for any person under the age of sixteen to possess any air-gun, spring-gun or other instrument or weapon in which the propelling force is a spring or air" unless that person has a proper hunting license or permit. The statute also provides that "[a] person who violates the provisions of this section shall be adjudged a juvenile delinquent." Defendant apparently ignores New York City Administrative Code § 10-131(b), which provides that "[i]t shall be unlawful for any person to sell, offer to sell or have in such person's possession any air pistol or air rifle or similar instrument in which the propelling force is a spring or air" without a license. This section has no age restriction, and it is an unclassified misdemeanor.
Defendant concedes that "[i]n comparing the elements of the foreign statute and its New York counterpart, the court may ‘examine the foreign statute ... as well as any foreign statute or case law that informs the interpretation of a foreign code breached by the defendant.’ Helms , 30 NY3d at 261" (Def Mem p 3). He argues, however, that Massachusetts courts have not held that a BB gun does not fall within the statutory definition of a firearm, but rather "assumed that a BB gun or air rifle was a firearm and instead held that an adult of eighteen years or older who possessed one fell within one of § 10's statutory exceptions" (Def Reply Mem p 1). He also claims that the cases on which the People rely "did not prevent the state from convicting a minor who possessed a BB gun or air rifle under § 10" (id. p 2). Defendant claims that the People have therefore failed to meet their burden to establish that "despite Massachusetts' very different definition of ‘firearm,’ it is not ‘possible to violate the foreign statute without engaging in conduct that is a felony in New York’ [citation omitted]" (id. p 3). For the reasons that follow, these arguments fail.
In Commonwealth v. Rhodes , Rhodes was found guilty in a District Court of violating G.L. c. 269, § 10(a) "as a result of carrying on his person a .177 calibre air-powered BB pistol designed to shoot BB's and incapable of firing bullets." 389 Mass. at 641, 642. Rhodes appealed to the jury session of Boston Municipal Court and moved to dismiss the complaint. That motion was granted on the ground that G.L. c. 269, § 12B contained the exclusive regulatory scheme for the use of air rifles and BB guns, id. at 642. On appeal, the Supreme Judicial Court of Massachusetts had to decide "whether or not § 12B of G.L. c. 269, contains the exclusive statutory regulation of the possession and carrying of air rifles and BB guns," and answered that question in the affirmative, id. at 642-43, 644, 647. The court observed that in order for a defendant to be guilty of violating G.L. c. 269, § 10(a), none of the four exceptions in that section can apply. The first three exceptions require a license or firearm identification card to exempt a person from the statute. The fourth exception, relating to BB guns, treats compliance with § 12B
as the equivalent of the possession of a license or firearm identification card. Section 12B does not regulate the possession of an air gun by an adult. An adult in possession of an air gun can, therefore, be said not to be in violation of its provisions.
Id. at 645. Accordingly, the court concluded that the motion to dismiss was properly granted because Rhodes could not be charged with violating G.L. c. 269, § 10(a) for possessing an air-powered BB gun, id. at 647. See also Commonwealth v. Lindsey , 396 Mass. 840, 843 (1986) ("Any exceptions that we have found to the general prohibition of § 10 [a] have been based on legislative intent. Commonwealth v. Rhodes , 389 Mass. 641 ... [BB gun, regulated by another statute, not regulated by § 10(a) ]").
Defendant correctly notes that the court in Rhodes did not decide whether a BB gun was a firearm within the meaning of G.L. c. 140, § 121. He states that Rhodes held that an adult could not be charged under G.L. c. 269, § 10(a) for possessing an air-powered BB gun (Def Reply Mem p 5), then claims, however, that a "minor not in compliance with § 12 ... would not be insulated from a conviction under § 10(a)" and that "it was possible in 2006 for a person who was a minor to have been convicted under § 10(a) and § 10(n) for possessing a BB gun or air rifle" (id. p 7). Defendant states that in Fenton , supra , the court "once more reasoned that § 12B is the ‘exclusive[ ]’ regulation of air gun possession, ‘an adult’ is always in compliance with § 12B, and an adult therefore falls within 10(a)'s exception for § 12B compliance. [Citation omitted]" (Def Mem p 6). He notes that Fenton was an adult (id. ) and claims that "Fenton ... said nothing about minors who possess a BB gun or air rifle in violation of § 12B" (Def Reply Mem p 6). To the contrary, however, Fenton did say something about minors who possess BB guns or air rifles. Indeed, it said explicitly:
[p]ossession of ‘any type of air gun,’ by either an adult or a minor is regulated exclusively by G.L. c. 269, § 12B. We therefore conclude that because § 12B imposes no penalties for possession of an air gun by an adult, the defendant's conviction under G.L. c. 269, § 10(a), is erroneous.
Commonwealth v. Fenton , 395 Mass. at 95 (emphasis supplied). The court also said that "[a]ny change expanding the reach of G.L. c. 269, § 10(a), to encompass air guns must be made by the legislature," id. at 93. See also Commonwealth v. Garrett , 473 Mass. at 263 ("[t]he Legislature's enactment of the gun control act in 1998, which does not amend the definition of firearm, reflects the legislative intent that BB guns remain subject to their well-established, separate regulation, rather than becoming subject to general gun control act provisions"); cf. Commonwealth v. Sayers , 438 Mass. at 239, 241 (reversing order of District Judge which granted motion to dismiss complaint charging defendant with carrying a firearm on university grounds in violation of G.L. c. 269, § 10(j) ; a BB gun is a firearm as defined in § 10(j) because that section provides a "different and broader definition of ‘firearm,’ which includes ‘any pistol, revolver, rifle or smoothbore arm from which a shot, bullet or pellet can be discharged by whatever means," and this definition clearly includes a BB gun).
Accordingly, defendant's claim that a minor in possession of a BB gun or air rifle could be prosecuted under G.L. c. 269, § 10(a) fails. His arguments ignore Massachusetts caselaw that plainly establishes, as a matter of law, that neither a minor nor an adult — in short, no person — could be convicted of possession of a firearm in violation of G.L. c. 269, § 10(a) or 10(n) for possessing a BB gun or air rifle. Accordingly, because it is not possible to violate the Massachusetts statutes under which defendant was convicted without engaging in conduct that is a felony in New York, defendant's prior conviction was properly used to adjudicate him a violent predicate felon. See People v. Helms , 30 NY3d at 262, 265 (defendant was properly sentenced as a predicate felony offender despite apparent absence of "knowingly" element in Georgia statute, because facial analysis limited to comparison of elements of New York and Georgia burglary statutes "ignores Georgia statutory and case law establishing that the unauthorized entry element of the Georgia burglary statute contains a culpable mental state at least commensurate with that of its New York counterpart").
Finally, because the Massachusetts law was clearly established at the time of defendant's sentencing in the instant cases, counsel cannot have been ineffective for not raising the present claim before the sentencing court. People v. Medina , 129 AD3d 429, 430 (1st Dept 2015), lv denied , 27 NY3d 1136 (2016) ("we find no ineffective assistance of counsel for failure to challenge the [Florida] predicate felony, as defense counsel cannot be faulted for the failure to raise an argument that lacks merit [citation omitted]."); People v. Schlau , 117 AD3d 461, 463 (1st Dept), lv denied , 23 NY3d 1067 (2014) (defendant was properly adjudicated a second violent felony offender based on Minnesota conviction; "Since a challenge to defendant's sentencing as a second violent felony offender would have been futile, counsel was not ineffective, under the state and federal standards, for failing to raise that claim [see People v. Benevento , 91 NY2d 708, 713-714 (1998) ; see also Strickland v. Washington , 466 U.S. 668 (1984) ].").
Conclusion
For the foregoing reasons, defendant's motion to set aside his sentence pursuant to CPL § 440.20(1) is denied.