People v. Gozdziak

211 A.D.3d 1603

180 N.Y.S.3d 445

The PEOPLE of the State of New York, Respondent,

v.Dwaine GOZDZIAK, Defendant-Appellant.

890

KA 22-00667

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: December 23, 2022

PAUL G. DELL, BUFFALO, FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing in accordance with the following memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of attempted rape in the first degree ( Penal Law §§ 110.00, 130.35 [4] ), defendant contends that County Court erred in sentencing him as a second child sexual assault felony offender (see Penal Law § 70.07 ). Preliminarily, inasmuch as the error alleged by defendant " ‘affects the legality of his sentence, the issue is reviewable irrespective of the validity of the waiver of his right to appeal’ " ( People v. Cruz-Ocasio , 208 A.D.3d 1059, 1060, 172 N.Y.S.3d 565 [4th Dept. 2022] ; see People v. Grubert , 160 A.D.3d 981, 982, 76 N.Y.S.3d 101 [2d Dept. 2018], lv denied 32 N.Y.3d 902, 2018 WL 4233500 [2018] ; see generally People v. Seaberg , 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ). On the merits, we agree with defendant.

"A person who stands convicted of a felony offense for a sexual assault against a child, having been subjected to a predicate felony conviction for a sexual assault against a child, must be sentenced" as a second child sexual assault felony offender in accordance with the applicable statutory provision setting an enhanced sentencing range ( Penal Law § 70.07 [1] ; see People v. Wragg , 26 N.Y.3d 403, 413-414, 23 N.Y.S.3d 600, 44 N.E.3d 898 [2015] ). The statute provides, with an exception not relevant here, that "[a] ‘sexual assault against a child’ means a felony offense ... (a) the essential elements of which include the commission or attempted commission of sexual conduct, as defined in [ Penal Law § 130.00 (10) ], [and] (b) committed or attempted to be committed against a child less than [15] years old" ( § 70.07 [2] ). Importantly, "[f]or purposes of determining whether a person has been subjected to a predicate felony conviction under this section, the criteria set forth in [ Penal Law § 70.06 (1) (b) ] shall apply," except that the look-back period is longer under the second child sexual assault felony offender statute ( § 70.07 [3] ). Consequently, as relevant here, a defendant has a qualifying predicate felony conviction for purposes of the second child sexual assault felony offender statute if three conditions are met: (1) the prior conviction was a felony in New York or an out-of-state offense "for which a sentence to a term of imprisonment in excess of one year ... was authorized and is authorized in [New York] irrespective of whether such sentence was imposed" ( § 70.06 [1] [b] [i] ; see § 70.07 [2], [3] ); (2) the prior felony or felony-equivalent offense had essential elements that included the commission or attempted commission of sexual conduct as defined in Penal Law § 130.00 (10) (see § 70.07 [2] [a] ); and (3) the prior felony or felony-equivalent offense was committed or attempted against a child less than 15 years old (see § 70.07 [2] [b] ).

With respect to the first condition, "[a]n out-of-state felony conviction qualifies as a predicate felony under New York's sentencing statutes only if it is for a crime ‘whose elements are equivalent to those of a New York felony’ " ( People v. Yusuf , 19 N.Y.3d 314, 321, 947 N.Y.S.2d 399, 970 N.E.2d 422 [2012], quoting People v. Gonzalez , 61 N.Y.2d 586, 589, 475 N.Y.S.2d 358, 463 N.E.2d 1210 [1984] ). "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, for ‘[i]t is the statute upon which the indictment was drawn that necessarily defines and measures the crime’ " ( Gonzalez , 61 N.Y.2d at 589, 475 N.Y.S.2d 358, 463 N.E.2d 1210 ). In other words, the court must " ‘appl[y] a strict equivalency standard that examines the elements of the foreign conviction to determine whether the crime corresponds to a New York felony, usually without reference to the facts giving rise to that conviction’ " ( People v. Helms , 30 N.Y.3d 259, 263, 66 N.Y.S.3d 660, 88 N.E.3d 1189 [2017] ). Thus, "[a]s a general rule, [the court's] inquiry is limited to a comparison of the crimes’ elements as they are respectively defined in the foreign and New York penal statutes" ( People v. Muniz , 74 N.Y.2d 464, 467-468, 548 N.Y.S.2d 633, 547 N.E.2d 1160 [1989] ; see Yusuf , 19 N.Y.3d at 321, 947 N.Y.S.2d 399, 970 N.E.2d 422 ; People v. Olah , 300 N.Y. 96, 98, 89 N.E.2d 329 [1949] ). "In this regard, courts generally should consider only the statutes defining the relevant crimes, and may not consider the allegations contained in the accusatory instrument underlying the foreign conviction" ( People v. Jurgins , 26 N.Y.3d 607, 613, 26 N.Y.S.3d 495, 46 N.E.3d 1048 [2015] ; see Muniz , 74 N.Y.2d at 467-468, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ). "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" ( Yusuf , 19 N.Y.3d at 321, 947 N.Y.S.2d 399, 970 N.E.2d 422 ). Nonetheless, under an exception to the general rule, a court may "go beyond the statute and scrutinize the accusatory instrument in the foreign jurisdiction where the [foreign] 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" ( Gonzalez , 61 N.Y.2d at 590, 475 N.Y.S.2d 358, 463 N.E.2d 1210 ; see Yusuf , 19 N.Y.3d at 321, 947 N.Y.S.2d 399, 970 N.E.2d 422 ; Muniz , 74 N.Y.2d at 468, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ). The People bear the "burden of establishing that [the] defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a felony in New York" ( People v. Yancy , 86 N.Y.2d 239, 247, 630 N.Y.S.2d 985, 654 N.E.2d 1233 [1995] ; see Jurgins , 26 N.Y.3d at 613, 26 N.Y.S.3d 495, 46 N.E.3d 1048 ).

Here, it is uncontroverted that defendant stands convicted of a felony offense for sexual assault against a child (see Penal Law § 70.07 [1], [2] ) because the class C felony of attempted rape in the first degree ( §§ 110.00, 130.35 [4] ; see § 110.05 [4]) includes as an essential element the attempted commission of sexual conduct in the form of sexual intercourse (see § 130.00 [10] ; § 70.07 [2] [a] ) and he attempted to commit such conduct against a child less than 15 years old (see § 70.07 [2] [b] ). It is also uncontroverted that defendant committed the subject prior out-of-state offense of lewd or lascivious battery in violation of Florida Statutes former § 800.04 (4) (a) against a child less than 15 years old (see Penal Law § 70.07 [2] [b] ) when he was 18 years old or older (see § 70.07 [3] ). The only contested issue below and on appeal is whether the prior out-of-state conviction meets that part of the definition of "a predicate felony conviction for a sexual assault against a child" ( § 70.07 [1] ) requiring that the conviction be for "a felony offense ... the essential elements of which include the commission or attempted commission of sexual conduct" as defined in Penal Law § 130.00 (10) ( § 70.07 [2] [a] ).

We conclude that "the People failed to satisfy their burden of establishing that defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a felony in New York" ( Yancy , 86 N.Y.2d at 247, 630 N.Y.S.2d 985, 654 N.E.2d 1233 ). Florida Statutes former § 800.04 (4) (a) provides that a person who "[e]ngages in sexual activity with a person 12 years of age or older but less than 16 years of age" commits lewd or lascivious battery. The term "sexual activity" is defined as "the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object," except for "an act done for a bona fide medical purpose" (Fla Stat former § 800.04 [1] [a]). The People failed below, and have now failed on appeal, to identify any "analogous Penal Law felony" ( Gonzalez , 61 N.Y.2d at 589, 475 N.Y.S.2d 358, 463 N.E.2d 1210 ) that corresponds with Florida Statutes former § 800.04 (4) (a) " ‘without reference to the facts giving rise to that conviction’ " ( Helms , 30 N.Y.3d at 263, 66 N.Y.S.3d 660, 88 N.E.3d 1189 ). The People's failure in that regard stems from the fact that the closest New York analog to lewd or lascivious battery (Fla Stat former § 800.04 [4] [a]) appears to be the crime of sexual misconduct, which is a misdemeanor ( Penal Law § 130.20 ). In New York, "[a] person is guilty of sexual misconduct when," as relevant here, that person "engages in sexual intercourse" or "engages in oral sexual conduct or anal sexual conduct" with another person "without such person's consent" ( § 130.20 [1], [2] ), and lack of consent may arise from incapacity to consent due to such other person being less than 17 years old (see § 130.05 [2] [b]; [3] [a]; see generally William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Penal Law § 130.00 ). " ‘Sexual intercourse’ has its ordinary meaning and occurs upon any penetration, however slight"; " ‘[o]ral sexual conduct’ means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina"; and " ‘[a]nal sexual conduct’ means conduct between...