People v. Marlo S. Helms
Issue Presented: Validity of an out-of-state conviction – a Georgia burglary – for predicate sentencing purposes.
Held: Valid, even under New York’s “strict equivalency test.” Although the Georgia statute did not on its face require that the person “knowingly” enter or remain in the dwelling, other incorporated statutes and case law from Georgia established that “knowingly” was an element of the offense. The court reaffirmed its earlier holdings that reference to out-of-state statutes and case law is permissible in determining the scope of the foreign statute.
CAL Observes: This represents one of the only times that the Court of Appeals has upheld the use of an out-of-state conviction. Despite that, litigants should be wary of the use of any out-of-state predicate as few can pass the “strict equivalency test.” Even foreign burglary statutes will remain subject to challenge as states other than Georgia do not require that the entry be done “knowingly” and, perhaps more significantly, define “building,” “dwelling,” and “offense” more broadly than New York. As long as there is a theoretical way to violate the foreign statute that would not be a felony (or violent felony) under New York law, then predicate sentencing should not be permitted.
Notably, this case reaffirmed People v. Jurgins, 26 N.Y.3d 607 (2015), a leading case on consideration of out-of-state predicates, but did not address the key open issue in Jurgins regarding the distinction between “criminal acts required by a penal statute” and “the various ways in which the statutory crime may be committed.” Understanding that distinction will be critical in determining the validity of many out-of-state convictions.