Opinion
3916-2003.
Decided July 12, 2010.
Robert T. Johnson, District Attorney, Bronx County (Nikki R. Harding, Of Counsel), for the People.
The Legal Aid Society by Lorca Morello, for the Defendant.
In a decision dated May 19, 2010 (familiarity with which is presumed), this Court denied the motion of the defendant Angelo Santiago, pursuant to C.P.L. § 440.20, to vacate the second felony offender adjudication and the accompanying sentence, both from October 12, 2005. 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 ("DLRA") via an affirmation filed on about May 28, 2010. The People filed a response on June 15, 2010. In addition, extensive oral argument was heard on June 30, 2010. The defense also submitted a letter brief on July 1, 2010. For the reasons that follow, the Court grants the motion to set aside the sentence and vacates its original decision.
Facts
On March 21, 2002, in the Third Circuit Court of Detroit, Michigan, the defendant Angelo Santiago, a/k/a "Anduey Santiago," was sentenced to two years probation by Hon. Harvey Tennen following his plea of guilty to attempted home invasion in the first degree. Michigan Criminal Law 750.110(a)(2). Defendant was subsequently sentenced to 180 days in jail on February 23, 2004 by Hon. Mary M. Watersons, Third Circuit Court of Wayne, Michigan, for violation of probation.
Via a felony complaint dated August 22, 2003, the defendant Angelo Santiago 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 September 22, 2003, defendant Angelo Santiago 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 October 22, 2003, defendant plead guilty to criminal sale of a controlled substance in the third degree before Justice Byrne, 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 December 4, 2003, defendant was released from custody on condition that he enter and remain 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. Defendant was involuntarily returned on a warrant on August 4, 2005 after he was arrested in Michigan under the name Anudy Santiago 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 May 24, 2004, before The Honorable Gregory Bill. That same day, defendant signed a Pretrial Settlement Offer And Notice of Acceptance in Michigan.
Defendant was sentenced by Judge Bill on June 14, 2004, 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 October 15, 2005, after being involuntarily returned to Bronx Supreme Court after an extradition request, defendant appeared for sentencing, with his attorney, Brian J. Sullivan. At that time, Mr. Sullivan indicated that the prosecutor had provided ". . .a statute for breaking and entering in. . .Michigan, which would appear to be the same as our burglary statute." (S 3). Further, Mr. Sullivan attested that the defendant understood that he would be receiving a sentence of 4 ½ to 9 years, concurrent with the aforementioned Michigan sentence. (S 4). 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.
Numerical reference preceded by "S" are to the sentencing minutes.
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. Failure to challenge any previous conviction in the statement at [that] time [was] a waiver on [the defendant's] part of any claim of unconstitutionality." (S 6). Following this statement by the court clerk the defendant stated that he did not wish to challenge any allegation in the statement.
Defendant was then 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 incarceration, to run concurrently with the Michigan case. On March 19, 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. This Court denied the motion, without a hearing, in a six-page written decision and order, dated May 19, 2010.
Conclusions of Law
Defendant's motion to set aside the sentence on the ground that he was improperly sentenced as a second felony offender is granted. Defendant argues 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. [Accordingly] a criminal defendant may seek such relief at any time after the entry of judgment." Kissloff ex rel Wilson v. Covington, 73 NY2d 445, 452 (1989) (emphasis added). See also People v. Perron, 273 AD2d 549 (3rd Dept. 2000); People v. Eason, 168 Misc 2d 44 (Sup. Ct. Queens Co. 1996).
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 . See People v. De Aga, 2010 WL 2362810 (1st Dept. 2010.).
In People v. Perron, 287 AD2d 808 (3rd Dept. 2001), 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." Id. at 808-809. Accordingly, the Third Department held that it was error to summarily deny the defendant's 440.20 motion. Id. Additionally, in People v. Cappucci, 94 AD2d 746 (2d Dept. 1983), 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. Id. at 746. (emphasis added).
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. People v. Alvarado, 67 AD2d 170 (1st Dept. 2009); People v. Odom, 61 AD2d 896, 897 (1st Dept.) lv. denied 13 NY3d 747 (2009). This case does not involve a predicate violent felony and is therefore not governed by C.P.L. § 400.15 (7)(b).
Issues regarding a foreign statute's equivalency to a New York felony are dictated by People v. Olah, 300 NY 96 (1949). Under the Olah test, "[t]o 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 [i]t is the statute upon which the indictment was drawn that necessarily defines and measures the crime.'" People v. Gonzalez, 61 NY2d 586, 589 (1984) (quoting Olah at 98.).
Under New York Penal Law § 140.30, "[a] person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling. . ." (emphasis added). 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." MCL § 750.110(a)(2). 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.
In People v. Schaner, 133 AD2d 582 (1987), the defendant 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." Id. Similarly, in People v. Cardona, 9 AD3d 337 (1st Dept. 2004), 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." Id. at 338. See also People v. Gilchrist, 223 AD2d 382 (1st Dept. 1996) (". . .since the New Jersey statute is broader and proscribes conduct that is not a felony in New York . . .this . . .conviction should not have been considered as a predicate felony for the purposes of enhanced sentencing."); People v. Covington, 144 AD2d 238, 239 (1st Dept. 1998) ("defendant was improperly sentenced as a second violent offender . . .[s]ince the North Carolina statute does not contain [an] element which is required for conviction of felony assault in New York, the crime for which the defendant was convicted for in North Carolina would not qualify as a felony in New York.")
Further, it is not necessary in the present case, 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. The Court of Appeals in People v. Muniz, 74 NY2d 464 (1989) 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.
Id. at 468. The Court of Appeals in People v. Gonzalez, 61 NY2d 586 (1984), 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." Id. at 590. 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.
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 Detroit.
After considering the standards outlined above and the facts of the instant case, it is manifest that substantial justice dictates that defendant's motion to set aside the sentence, on the grounds that his adjudication as a second felony offender was unlawful, be granted.
Conclusion
Accordingly, the Defendant's motion to set aside the sentence is granted.
This constitutes the decision and order of the Court.