AD4 order dated September 27, 2013, affirming order denying CPL. 440.20 motion. Decision below: 109 AD3d 1108, 971 NYS2d 595. Read, J., granted leave March 5, 2014.

ISSUE PRESENTED: Whether the discretionary persistent felony offender statute (PL 70.10) should be interpreted to have a requirement that non-New York predicate felonies have a New York equivalent, as does the second felony offender statute (P.L. 70.06).

Issue before the Court:  Unlike all the other predicate felony sentencing schemes, the discretionary persistent felony offender sentencing provision (Penal Law § 70.10) does not on its face appear to require strict equivalency between the foreign conviction and a New York felony to qualify as a predicate offense.  Should the “strict equivalency” requirement, see People v. Ramos, 19 N.Y.3d 417, 419 (2012), be read into Penal Law § 70.10?

 

Holding:  No, says Judge Read writing for a unanimous Court.  “New York’s persistent felony offender statute, by its plain terms, does not require that, in order to classify someone as a persistent felony offender, an out-of-state predicate felony must have a New York counterpart.”

 

CAL observes: At first blush, this was a very straight-forward question of statutory-interpretation with the answer fairly evident from the plain language of the statute, which merely required that the conviction, whether it be in New York or “any other jurisdiction,” have involved a sentence in excess of one year that fits within the sequentiality requirement.  The Court seemed unimpressed that a defendant, who might not qualify as a second or second-violent felony offender due to the inapplicability of his out-of-state convictions, could still fit the definition of a persistent felony offender subjecting him to a lifelong sentence.  The constitutional challenge was rejected as unpreserved or lacking in merit.

 

Perhaps more interesting in why the defendant did not press an Apprendi challenge in the Court of Appeals.  True, the issue has been decided a number of times by the Court including as recently as December, but the makeup of the bench has changed.  The Chief Judge and Judge Abdus-Salaam continue to maintain the statute violates Apprendi.  See People v. Giles, 24 N.Y.3d 1066 (2014).  Judges Fahey, Rivera, and Stein have yet to weigh in.  With two of those three votes, the contrivedness of the holding in People v. Rosen, 96 N.Y.2d 329 (2001), could be put to rest.  Now with Judge Read retiring, the question would certainly appear to be open.  Perhaps this decision, with its focus on the plain meaning of this particular statute, will lend further support to the Apprendi challenge.