SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CRIMINAL TERM: PART 59 ---------------------------------------------------------------------- x ---- THE PEOPLE OF THE STATE OF NEW YORK, : -against- : : DECISION AND ORDER Indictment Number: 1860/2011 FREDDY WHITE, : Defendant. x ---------------------------------------------------------------------- - APPEARANCES: For Defendant: Lisa A. Packard, Esq. Center for Appellate Litigation 74 Trinity Place - 11 th Floor New York, NY 10006 HON. JUAN M. MERCHAN, A.J.S.C.: For the People: Allie Rubin, Esq. Assistant District Attorney New York County District Attorney s Office One Hogan Place New York, N.Y. 10007 Background Defendant was convicted on September 27, 2012, following a jury trial, of Robbery in the First Degree pursuant to Penal Law (hereinafter P.L. ) 160.15(3), a violent felony. Prior to trial, on September 21, 2011, the People had filed a Statement of Two or More Predicate Violent Felony Convictions (hereinafter the statement ) pursuant to Criminal Procedure Law (hereinafter C.P.L. ) 400.16 and P.L. 70.08. The statement listed a total of five prior convictions, three of which were alleged to be violent felonies pursuant to P.L. 70.02, and two of which were alleged to be non-violent felonies pursuant to P.L. 70.06. Of the three alleged
predicate violent felonies, two were for out-of-state convictions: Burglary in the First Degree in violation of Florida Statute 810.02(1)(a) and 810.02(2)(b), from February 4, 1991, and Malicious Wounding in violation of Virginia Code 18.2-51, from April 23, 2001. On October 15, 2012, the date of sentencing, Defendant challenged his status as a mandatory persistent violent felony offender. This Court adjourned the case to October 25, 2012, for a hearing on Defendant s predicate status. On the hearing date, defense counsel withdrew the previous challenge to Defendant s mandatory persistent violent felony offender status and asked that Defendant be sentenced. Accordingly, Defendant was sentenced that day as a mandatory persistent violent felony offender to a prison term of 23 years to life. On May 2, 2014, Defendant, through counsel, moved pursuant to C.P.L. 440.20, to set aside his sentence on the grounds that the two out-of-state offenses contained in the People s predicate felony statement are not predicate felony offenses for purpose of adjudicating Defendant a mandatory persistent violent felony offender; and that defense counsel s failure to challenge those convictions at the time of sentence deprived Defendant of the effective assistance of counsel. Arguments Defendant maintains that neither his 1991 conviction in the state of Florida for Burglary in the First Degree nor his 2001 conviction in the state of Virginia for Malicious Wounding amount to a felony, let alone a violent felony, under New York law. In support, Defendant argues: (1) that the First Department has already decided in People v. Fermin, 231 A.D.2d 436 (1 st Dept. 1996) that a conviction under the Florida statute for Burglary in the First Degree may not serve as a predicate felony offense; and (2) that Defendant s Virginia conviction for Malicious Wounding was based on a statute that encompasses a much broader range of conduct
and physical injury than the closest New York violent felony counterpart and therefore cannot serve as a predicate felony offense. Defendant further argues that he received ineffective assistance of counsel at sentencing because defense counsel failed to challenge the People s predicate violent felony statement, a challenge which he contends would have been successful. While the People concede that Defendant s 1991 Florida conviction for Burglary in the First Degree cannot serve as a predicate violent felony under Fermin, they still maintain that Defendant was properly sentenced as a persistent violent felony offender on the basis of his 2001 Virginia conviction for Malicious Wounding and his 1991 New York conviction for Attempted Murder in the Second Degree. The People argue specifically that the Malicious Wounding statute includes all of the essential elements of Assault in the Second Degree under P.L. 120.05(2) and therefore constitutes a predicate violent felony in New York. Given the broad nature of the Virginia statute, the People requested, and this Court granted, time to obtain the accusatory instrument underlying Defendant s Virginia conviction. Lastly, the People contend that Defendant s ineffective assistance of counsel claim should be denied on the grounds that defense counsel s failure to object to a predicate felony statement does not rise to the level of ineffectiveness. Discussion A motion to set aside a sentence pursuant to C.P.L. 440.20(1) may be made upon the ground that the sentence imposed was unauthorized, illegally imposed or otherwise invalid as a matter of law. The motion impacts only upon the sentence and, if granted, does not affect the underlying conviction. C.P.L. 440.20(4). A. Persistent Violent Felony Offender Status
P.L. 70.08 requires an enhanced sentence for those persons found to be persistent violent felony offenders. A persistent violent felony offender is a person who stands convicted of a violent felony offense... after having previously been subjected to two or more predicate violent felony convictions. P.L. 70.08(1)(a). An out-of-state offense will constitute a predicate violent felony conviction only when: (a) the sentence exposure for the out-of-state offense is in excess of one year; and (b) the out-of-state conviction is for a crime whose elements are equivalent to those of a New York felony. People v. Gonzalez, 61 N.Y.2d 586, 589 (1984); see also P.L. 70.04(b)(i). 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 out-of-state and New York penal statutes. People v. Muniz, 74 N.Y.2d 464, 467-68 (1989). This comparison of the statutes may not consider the factual allegations in the underlying indictments, as it 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. People v. Ramos, 19 N.Y.3d 417, 419 (2012), quoting People v. Olah, 300 N.Y. 96, 98-99 (1949). 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. Ramos, 19 N.Y.3d at 419, quoting Matter of North v. Board of Examiners of Sex Offenders of N.Y., 8 N.Y.3d 745, 751 (2007). Although the statutory comparison is generally limited to the elements of the respective crimes, a sentencing court may go beyond the statute and scrutinize the accusatory instrument
in the foreign jurisdiction where the statute renders criminal not one act but several acts which, if committed in New York, would in some cases be felonies and in others would constitute only misdemeanors. People v. Boston, 79 A.D.3d 1140 (2d Dept. 2010), quoting Gonzalez, 61 N.Y.2d at 590. Here, Defendant was convicted of the crime of Malicious Wounding under Virginia Code 18.2-51 on April 23, 2001, in the State of Virginia. The People relied on that conviction in their predicate violent felony statement. That statute reads as follows: If any person maliciously shoot, stab, cut or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If any such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony. In Virginia, a Class 3 felony requires a sentence of not less than five years, and not more than twenty years imprisonment (Va. Code Ann. 18.2-10[c]), and a Class 6 felony requires a sentence of not less than one year, and not more than five years 1 (Va. Code Ann. 18.2-10[f]). Therefore, the Virginia statute satisfies the first prong of the test to determine whether the outof-state conviction may serve as a predicate violent felony, in that a prison sentence in excess of one year is authorized. See 70.04 (1)(b)(i). Both parties agree that the closest New York felony analog to the Virginia statute is Assault in the Second Degree pursuant to P.L. 120.05(2), which reads as follows: A person is guilty of assault in the second degree when with the intent to cause physical injury to another person, he causes such injury to such person or a third person by means of a deadly weapon or a dangerous instrument. However, contrary to the People s argument, this Court finds that the Virginia statute 1A judge may exercise his or her discretion and sentence an individual convicted of a Class 6 felony to confinement in jail for no longer than twelve months along with a fine not greater than $2,500. Va. Code Ann. 18.2-10(f)
does not satisfy the strict equivalency test when compared to Assault in the Second Degree under subdivision (2), see Ramos, 19 N.Y.3d at 419, because the conduct and consequences encompassed under the Virginia statute are much broader than that under the New York statute. People v. Yusuf, 19 N.Y.3d 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 felony. ) Therefore, the two statutes are not equivalent. Unlike the New York statute, which requires the use of a deadly weapon or dangerous instrument, the Virginia statute does not. Va. Code 18.2-51; See Johnson v. Commonwealth, 18 Va. 409,416-17 (1945) (upholding a conviction under the malicious wounding statute for inflicting injuries using a fist ). The New York second degree assault statute requires physical injury plus the use of a deadly weapon or dangerous instrument. P.L. 120.05[2]). A person who intentionally causes physical injury, without the use of a dangerous instrument or a deadly weapon commits only misdemeanor assault in New York under Penal Law 120.00(1). Lastly, although this Court granted the People s request to scrutinize the accusatory instrument underlying Defendant s Virginia conviction for Malicious Wounding, this Court finds that the indictment merely recites the statute in its entirety, and does not provide anything on its face that might indicate Defendant was convicted of a crime equivalent to a New York felony. See People v. Yancy, 86 N.Y.2d 239, 247 (1995). Unlike Yancy, where the Court of Appeals held that it was not clear on the face of the indictment whether that defendant s prior New Jersey conviction amounted to a New York felony because the indictment did not indicate which subsection the defendant had violated, the Virginia statute at issue here broadly defines the acts and consequences considered punishable and does not include any specific subsections
whatsoever, let alone any equivalent to a New York felony. Id. While the People supplied a narrative of the incident, and suggest that the conduct described therein satisfies the New York felony of second-degree assault, reliance on the narrative would be improper. See Gonzalez, 61 N.Y.2d at 591 ( [T]he allegations of the accusatory instrument may be referred to when necessary to clarify the statutory charge, to limit or narrow the basis for the conviction, but they may not be used to enlarge or expand the crime charged.) Because the People failed to satisfy their burden of establishing that Defendant s out-of-state conviction is equivalent to a felony in New York, Defendant is entitled to resentencing without consideration of the prior Virginia conviction. Yancy, 86 N.Y.2d at 247. As to Defendant s 1991 Florida conviction for Burglary in the First Degree, this Court agrees that, pursuant to First and Second Department precedent in People v. Fermin, 231 A.D.2d 436 (1 st Dept. 1996) and People v. Boston, 79 A.D.3d 1140 (2d Dept. 2010), the Florida statute is not equivalent to any New York felony. Accordingly, Defendant is entitled to resentencing without consideration of his 1991 Florida conviction as well. B. Ineffective Assistance of Counsel Defendant claims that he received ineffective assistance of counsel at sentencing because defense counsel failed to challenge the two out-of-state convictions contained in the People s predicate violent felony statement, a challenge which Defendant argues would have been successful. Defendant further argues that defense counsel s failure to challenge the People s statement had no strategic basis and resulted in the imposition of a maximum term of life imprisonment. This Court finds that defense counsel rendered ineffective assistance of counsel for the following reasons: To prove ineffective assistance under the Sixth Amendment to the United States
Constitution, a defendant must show that: (a) counsel s performance fell below an objective standard of reasonableness or was deficient; and (b) that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984); see also People v. Ford, 86 N.Y.2d 397, 405 (1995). Article 1, Section 6 of the New York Constitution provides that, [s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met. People v. Baldi, 54 N.Y.2d 137, 147 (1983); see also People v. Henry, 95 N.Y.2d 563, 565 (2005). The question to be answered is whether counsel s conduct prejudiced the fairness of the trial or proceeding as a whole. People v. Benevento, 91 N.Y.2d 708, 713-714 (1998). As long as the defense reflects a reasonable and legitimate trial strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance. Benevento, 91 N.Y.2d at 712. Here, counsel s failure to challenge the predicate violent felony statement cannot be said to be the result of strategic decision-making. See Benevento, 91 N.Y.2d at 712; see also Fagan, 116 A.D.3d at 452. Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 691; see also Baldi, 54 N.Y.2d at 147. There can be no doubt that the decision to challenge whether an out-of-state conviction can serve as a predicate in New York for sentencing purposes is a legal question and therefore it is counsel s responsibility. See People v. Wimberly, 86 A.D.3d 651, 652-653 (3d Dept. 2011) ( we find a question as to whether counsel provided inadequate legal assistance by failing to detect and correct the mistaken impression of defendant s sentencing status ); People v. Thomson, 46 A.D.3d 939, 940 (3d Dept. 2007)
(counsel s failure to ascertain that a prior New Jersey conviction did not constitute a predicate felony constituted inadequate legal assistance). Significantly, Defendant s sentence was predicated on a conviction after trial and not on a negotiated plea deal. Therefore, there could be no concern on the part of defense counsel that challenging the People s predicate violent felony statement would have affected plea negotiations or result in a less favorable plea deal. See, e.g., People v. Kelly, 65 A.D.3d 886, 893-894 (1 st Dept. 2009) (counsel could have believed that challenging the predicate felony statement would jeopardized a favorable plea bargain); People v. Thomson, 46 A.D.3d 939, 940-941 (3d Dept. 2007) (even though counsel was ineffective there was no showing of prejudice because the defendant presented no evidence that the People based their plea offer on the defendant s mistaken sentencing status or that the People would have offered a more favorable plea had the defendant s real sentencing status been known); People v. Ochs, 16 A.D.3d 971 (3d Dept. 2005) (counsel negotiated a favorable plea deal which significantly reduced the defendant s exposure); People v. Barton, 200 A.D.2d 888, 843 (3d Dept. 1994) ( It is quite likely that defense counsel considered whether a challenge to the out-of-state conviction would have been... strategically advisable ). Had counsel investigated the convictions contained in the predicate violent felony statement, counsel would have discovered that Defendant had at minimum, colorable legal arguments for challenging the predicate violent felony statement. See, e.g., People v.jurgins, 34 Misc.3d 1217(A), *5 (Sup. Ct. Bx. Cty. 2012) (counsel investigated whether the alleged predicate felony was a valid predicate under New York law and found no grounds to challenge it). Moreover, Defendant was prejudiced by counsel s failure to investigate and challenge his convictions in Virginia and Florida, given this Court s finding that Defendant s out-of-state
convictions cannot serve as predicate violent felonies for sentencing purposes. See, e.g., People v. Fagan, 116 A.D.3d 451 (1 st Dept. 2014) (defense counsel s failure to lodge a challenge led to persistent violent felony offender sentencing); People v. Bachman, 272 A.D.2d 718, 719 (3d Dept. 2000) (the defendant suffered no prejudice given the court s conclusion that the Pennsylvania conviction properly served as a predicate conviction for sentencing purposes). A successful challenge to Defendant s prior out-of-state convictions could have only benefitted Defendant. Defendant s adjudication as a persistent violent felony offender exposed him to an indeterminate prison term of a minimum of 20 years to life and a maximum of 25 years to life, and this Court in fact imposed a sentence of 23 years to life imprisonment. See Wimberly, 86 A.D.3d at 653 (defendant received a lengthier sentence as a predicate violent felony offender than he would have as a first-time violent felony offender). Had Defendant been deemed a second violent felony offender instead of a persistent violent felony offender, his exposure would have been limited to a determinate sentence of a minimum of 10 years and a maximum of 25 years imprisonment to be followed by 5 years of post-release supervision. Life imprisonment would not have been an option. This being the case, there could be no strategy for not challenging Defendant s out-of-state convictions. See, e.g., Kelly, 65 A.D.3d at 894. Thus, this Court finds that Defendant has met his burden of showing that he did not receive meaningful representation under New York law, that defense counsel s performance was not objectively reasonable, and that under federal law Defendant was prejudiced as a result of counsel s deficiency. Conclusion For the reasons stated above, Defendant s motion to set aside his sentence pursuant to C.P.L. 440.20 is granted. Accordingly, this matter is to be adjourned for Defendant to be
resentenced in accordance with his actual predicate status. The constitutes the decision and order of this Court. Dated: September 9, 2014 New York, New York Juan M. Merchan Judge of the Court of Claims Acting Justice - Supreme Court