PEOPLE v. TAMAYO (2021)

The defendant pled guilty under the current indictment to one count of Possession of a Forged Instrument in the Second Degree, in violation of New York Penal Law (“PL”) § 170.25 on August 15, 2012. Upon his plea, the defendant was afforded the opportunity to participate in the Judicial Diversion program. Prior to that date, the defendant challenged the People's assertion that he is a predicate felon. The defendant's Judicial Diversion contract reflects a jail alternative of 2 to 4 years if he fails to complete the program, and a potential maximum sentence of 3.5 to 7 years if he were to sustain a new arrest. Notably, an addendum was added to the contract indicating that the proposed sentencing scheme was subject to a finding with regard to the defendant's predicate felony status.

On August 16, 2012, only one day after he entered his plea and executed the Judicial Diversion contract, a bench warrant was ordered. The bench warrant stood for nearly eight years until the defendant voluntarily returned on the warrant on July 28, 2020. Due to the defendant's extended bench warrant, a decision was not previously rendered regarding the defendant's predicate felony status.

Legal Discussion

Prior to sentencing, a defendant may challenge a predicate felony statement that has been filed by the People. Criminal Procedure Law (“CPL”) § 400.21(3). When challenged, it is the People's burden to establish beyond a reasonable doubt that the defendant has been subjected to a prior felony conviction. CPL § 400.21(7).

A conviction from a foreign jurisdiction may form the basis for a defendant to be deemed a second felony offender as long as the conviction was for a crime that, if committed in New York State, would constitute a felony. PL § 70.06(1)(b)(i). To determine whether an out-of-state conviction qualifies as a valid predicate under this provision, a court “must examine the elements of the foreign statute upon which the indictment was drawn that necessarily defines and measures the crime.” See People v. Gonzalez, 61 NY2d 586, 589 (1984), quoting People v. Olah, 300 NY 96, 98 (1949).

The determination as to whether an out-of-state conviction's elements are equivalent to that of a New York felony “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 NY2d 464, 467-68 (1989). The comparison of the statutes is not to 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 NY3d 417, 419 (2012), quoting Olah, at 98-99. It is a test of “strict equivalency,” such 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 NY3d at 419, quoting Matter of North v. Board of Examiners of Sex Offenders of NY, 8 NY3d 745, 751 (2007). Accordingly, when a comparison of the statutes “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.” People v. Yusuf, 19 NY3d 314, 321 (2012).

Here, the defendant was convicted of the crime of Theft of a Credit Card in the Fourth Degree, in violation of New Jersey Criminal Code 2C:21-6c(1), on January 9, 2006. The People relied on that conviction in their predicate felony statement. Per the New Jersey statute, “A person who takes or obtains a credit card from the person, possession, custody or control of another without the cardholder's consent or who, with knowledge that it has been so taken, receives the credit card with intent to use it or sell it, or to transfer it to a person other than the issuer or the cardholder is guilty of a crime of the fourth degree. Taking a credit card without consent includes obtaining it by any conduct defined and prescribed in Chapter 20 of this title, Theft and Related Offenses.”

Therefore, the crime of credit card theft in New Jersey can be committed in one of two ways. The first is by taking or obtaining a credit card. The second is by receiving a credit card with knowledge that it is so taken. Each manner in which the crime could be committed comes with its own unique set of elements.

The People contend that the elements in the New Jersey statute are analogous to those of New York's Grand Larceny in the Fourth Degree. A person is guilty of Grand Larceny in the Fourth Degree when he steals property and when that property consists of a credit card or debit card.” PL § 155.30(4). Further, “a person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” PL § 155.05(1).

This Court, however, finds that this analysis only applies to the taking theory of the New Jersey statute. With regard to the receiving theory, New York Penal Law Section 165.45(2) is the more analogous statute. That statute reads, in pertinent part, “A person is guilty of criminal possession of stolen property in the fourth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the property consists of a credit card ․”

Under the taking theory of New Jersey's credit card theft statute, “taking a credit card” includes any conduct defined in Chapter 20 of New Jersey's Criminal Code. Chapter 20 then includes various means of theft including Theft by Unlawful Taking or Disposition (NJSA 2C:20-3), Theft by Deception (NJSA 2C:20-4), Theft by Extortion (NJSA2C:20-5), and Theft by Failure to Make Required Disposition of Property Received (NJSA 2C:20-9). Notably, the Theft by Unlawful Taking or Disposition definition incorporates an intent to deprive element. This element of an intent to deprive mirrors that of New York's larceny definition.¹ Therefore, a theft committed pursuant to NJSA 2C:20-3 could be found to be the equivalent of a New York felony. See People v Armstrong, 167 AD2d (1st Dept. 1990). Conversely, both Theft by Deception and Theft by Extortion require the obtaining of property, but do not include any intent to deprive or appropriate.² Because New York's law includes an intent element that is not required in New Jersey, the foreign statute is broader. A comparison of the New Jersey and New York statutes need not extend any further. The foreign statute lacks an essential element that is part of the New York statute.³

The People's claim that both New York and New Jersey define “obtain” in nearly identical terms and that such terms do not include any intent to deprive is misplaced.⁴ Stealing in New York may be done by taking, obtaining or withholding property. PL § 155.05(1). However, the intent to deprive or to appropriate applies to all three actions. Id. Credit card theft in New Jersey, however, can be completed by obtaining property without having an intent to deprive. Accordingly, there is an additional element of intent that is required under New York law but is not part of New Jersey's statute.

Upon application of the strict equivalency test, a comparison of the two statutes leads this Court to find that the People have failed to meet their burden in showing that the New Jersey statute is equivalent to a felony statute in New York. Therefore, the Court finds that the defendant is not a predicate felony offender.

The foregoing constitutes the Decision and Order of the court.

FOOTNOTES

1.   In New York, deprive “means (a) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him, or (b) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.” PL § 155.00(3). In New Jersey, deprive “means: (1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value, or with purpose to restore only upon payment of reward or other compensation; or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it.” NJSA 2C:20-1(a).

2.   One is guilty of theft by deception “if he purposely obtains property of another by deception.” NJSA 2C:20-4. One is guilty of theft by extortion “if he purposely and unlawfully obtains property of another by extortion.” NJSA 2C:20-5.

3.   Because this Court finds that the taking theory of credit card theft is broader than New York's Grand Larceny statute, the Court need not continue the analysis as to the receiving aspect of the New Jersey statute and New York's Possession of Stolen Property statute.

4.   In New York, “obtain includes, but is not limited to, the bringing about of a transfer or purported transfer of property or of a legal interest therein, whether to the obtainer or another.” PL § 155.00(2). In New Jersey, obtain “means: (1) in relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another; or (2) in relation to labor or service, to secure performance thereof.” NJSA 2C-20-1(f).

Cori Weston, J.