PEOPLE v. DEJESUS (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (William Little, J.), rendered March 29, 2022, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a firearm in the second degree.

In satisfaction of a four-count indictment, defendant pleaded guilty to the reduced charge of attempted criminal possession of a firearm in the second degree, with the understanding that County Court would impose a sentence of three years in prison, to be followed by a period of postrelease supervision of either three years or five years, depending on his predicate felony status.  County Court thereafter determined that defendant was a second felony offender based upon a prior conviction in New Jersey, and sentenced him to three years in prison, to be followed by five years of postrelease supervision.  Defendant appeals, arguing that he was improperly adjudicated a second felony offender.

We affirm.  “[A] prior out-of-state conviction qualifies as a predicate felony conviction if it involved ‘an offense for which a sentence to a term of imprisonment in excess of one year ․ was authorized and is authorized in this state’ ” (People v. Jurgins, 26 N.Y.3d 607, 613, 26 N.Y.S.3d 495, 46 N.E.3d 1048 [2015], quoting Penal Law § 70.06[1][b][i];  accord People v. Drayton, 222 A.D.3d 1045, 1048, 201 N.Y.S.3d 555 [3d Dept. 2023], lv denied 41 N.Y.3d 1001, 213 N.Y.S.3d 240, 236 N.E.3d 1258 [2024];  see People v. Caraballo, 213 A.D.3d 1142, 1144, 183 N.Y.S.3d 628 [3d Dept. 2023]).  “Because New York only permits terms of imprisonment in excess of one year for felony convictions, the statute requires that the conviction be for a crime whose elements are equivalent to those of a New York felony.  To 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” (People v. Caraballo, 213 A.D.3d at 1144–1145, 183 N.Y.S.3d 628 [internal quotation marks and citations omitted];  see People v. Muniz, 74 N.Y.2d 464, 467, 548 N.Y.S.2d 633, 547 N.E.2d 1160 [1989];  People v. Gozdziak, 211 A.D.3d 1603, 1604, 180 N.Y.S.3d 445 [3d Dept. 2022]), and the People bear the burden of establishing that the foreign offense is equivalent to a felony in New York (see People v. Gozdziak, 211 A.D.3d at 1605, 180 N.Y.S.3d 445).

Generally, “this inquiry is limited to a comparison of the crimes' elements as they are respectively defined in the foreign and New York Penal statutes[, and t]he allegations contained in the accusatory instrument underlying the foreign conviction may ordinarily not be considered, because such instruments frequently contain nonessential recitals” (People v. Muniz, 74 N.Y.2d at 467–468, 548 N.Y.S.2d 633, 547 N.E.2d 1160;  see People v. Drayton, 222 A.D.3d at 1048, 201 N.Y.S.3d 555;  People v. Gozdziak, 211 A.D.3d at 1604, 180 N.Y.S.3d 445).  That said, under an exception to the general rule, “the underlying allegations must be considered when the foreign statute under which the defendant was convicted renders criminal several different acts, some of which would constitute felonies and others of which would constitute only misdemeanors or no crime if committed in New York” (People v. Jurgins, 26 N.Y.3d at 613, 26 N.Y.S.3d 495, 46 N.E.3d 1048 [internal quotation marks, brackets and citation omitted];  see People v. Darby, 235 A.D.3d 1189, 1191, 228 N.Y.S.3d 727 [3d Dept. 2025]).  “In such cases, the accusatory recitals may be considered to the extent necessary to isolate and identify the statutory crime of which the defendant was accused” (People v. Darby, 235 A.D.3d at 1191, 228 N.Y.S.3d 727 [internal quotation marks and citations omitted];  see People v. Jurgins, 26 N.Y.3d at 613, 26 N.Y.S.3d 495, 46 N.E.3d 1048).

The New Jersey statute under which defendant was convicted provides, as relevant here, that “it shall be unlawful for any person knowingly or purposely ․ [t]o manufacture, distribute or dispense, or to possess or have under his [or her] control with intent to manufacture, distribute or dispense, a controlled ․ substance” (NJ Stat Ann § 2C:35–5 [a][1]).  In New York, Penal Law § 220.16 provides, as relevant here, that a person is guilty of criminal possession of a controlled substance in the third degree, a class B felony, “when he [or she] knowingly and unlawfully possesses ․ a narcotic drug with intent to sell it” (Penal Law § 220.16[1]).¹  Inasmuch as the New Jersey statute contains elements not found in certain New York statutes, i.e., manufacturing, and encompasses a mix of felony and misdemeanor offenses (see NJ Stat Ann § 2C:35–5), a consideration of the accusatory recitals underlying the New Jersey conviction is warranted to determine whether defendant's conviction was equivalent to a New York felony (see People v. Darby, 235 A.D.3d at 1191, 228 N.Y.S.3d 727;  People v. Beachum, 154 A.D.3d 559, 559, 62 N.Y.S.3d 264 [1st Dept. 2017], lv denied 30 N.Y.3d 1103, 77 N.Y.S.3d 2, 101 N.E.3d 388 [2018]).  Here, the New Jersey accusatory instrument stated that defendant “did unlawfully and knowingly possess with intent to distribute [h]eroin.”  As such, the accusatory instrument reflects that defendant committed an act that would constitute the felony of criminal possession of a controlled substance in the third degree in New York (see Penal Law § 220.16[1];  People v. Wahhab, 210 A.D.3d 809, 810, 177 N.Y.S.3d 718 [2d Dept. 2022], lv denied 39 N.Y.3d 1080, 184 N.Y.S.3d 276, 204 N.E.3d 1058 [2023];  People v. Beachum, 154 A.D.3d at 559, 62 N.Y.S.3d 264;  People v. Marine, 247 A.D.2d 557, 557, 668 N.Y.S.2d 483 [2d Dept. 1998], lv denied 92 N.Y.2d 856, 677 N.Y.S.2d 86, 699 N.E.2d 446 [1998]).  As to defendant's remaining contention – that the unavailability of an agency defense in New Jersey precludes his conviction there from serving as a predicate felony – “the unavailability of the agency defense in a foreign jurisdiction has no bearing on whether a foreign felony qualifies as the equivalent of a New York felony” (People v. Reilly, 273 A.D.2d 143, 143, 711 N.Y.S.2d 381 [1st Dept. 2000], lv denied 95 N.Y.2d 937, 721 N.Y.S.2d 614, 744 N.E.2d 150 [2000];  see People v. Jenkins, 165 A.D.3d 583, 584, 84 N.Y.S.3d 778 [1st Dept. 2018], lv denied 32 N.Y.3d 1173, 97 N.Y.S.3d 580, 121 N.E.3d 207 [2019];  People v. Estrada, 78 A.D.3d 408, 409, 909 N.Y.S.2d 909 [1st Dept. 2010], lv denied 16 N.Y.3d 797, 919 N.Y.S.2d 514, 944 N.E.2d 1154 [2011];  People v. Rexach, 220 A.D.2d 362, 363, 633 N.Y.S.2d 131 [1st Dept. 1995], lv denied 87 N.Y.2d 924, 641 N.Y.S.2d 606, 664 N.E.2d 517 [1996]).  In light of the foregoing, County Court properly adjudicated defendant as a second felony offender.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   In our view, the term “distribute” in NJ Stat Ann § 2C:35–5 (a)(1) is inclusive of the term “sell” in Penal Law § 220.16 (see NJ Stat Ann § 2C:35–2;  Penal Law § 220.00[1];  see generally People v. Hernandez, 296 A.D.2d 556, 557, 745 N.Y.S.2d 698 [2d Dept. 2002], lv denied 98 N.Y.2d 711, 749 N.Y.S.2d 8, 778 N.E.2d 559 [2002]).

Fisher, J.

Lynch, J.P., Ceresia, Powers and Mackey, JJ., concur.