Opinion
14309-14309A Ind. No. 1228/17 Case No. 2019-1202
11-09-2021
The PEOPLE of the State of New York, Respondent, v. Javan CAMPANIONI, Defendant–Appellant.
Caprice R. Jenerson, Office of The Appellate Defender, New York (Catherine Taylor Poor of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Philip V. Tisne of counsel), for respondent.
Caprice R. Jenerson, Office of The Appellate Defender, New York (Catherine Taylor Poor of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Philip V. Tisne of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Moulton, Gonza´lez, Pitt, JJ.
Order, Supreme Court, New York County (Ann E. Scherzer, J.), entered on or about August 19, 2020, which denied defendant's CPL 440.20 motion to set aside his sentence, unanimously reversed, on the law, the motion granted, the sentence vacated, and the matter remanded for resentencing as a first felony offender. Appeal from judgment, same court and Justice, rendered April 10, 2018, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of 3½ years, unanimously dismissed as academic.
Defendant's sentence as a second felony offender should be set aside as based on a nonqualifying predicate felony conviction. Defendant was adjudicated a second felony offender based on a federal conviction for distribution and possession with intent to distribute cocaine under 21 USC § 841(a)(1). That provision is not equivalent to Penal Law § 220.39 because the federal crime has a broader knowledge element, requiring only that the defendant "knowingly or intentionally ... possess with intent to ... distribute ... a controlled substance, " as opposed to having particular knowledge of the drug type actually possessed (see People v. Muhammad, 168 A.D.3d 549, 91 N.Y.S.3d 414 [1st Dept. 2019], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 231, 124 N.E.3d 720 [2019] ; People v. Ramos, 145 A.D.3d 432, 41 N.Y.S.3d 698 [1st Dept. 2016] ; United States v. Branham, 515 F.3d 1268, 1276 [D.C. Cir.2008] ; United States v. King, 345 F.3d 149, 153 [2d Cir.2003], cert denied 540 U.S. 1167, 124 S.Ct. 1184, 157 L.Ed.2d 1215 [2004] ). The cases in which this Court has upheld 21 USC § 841(a)(1) as the equivalent of a New York felony did not address this discrepancy in the breadth of the knowledge element; other equivalency issues were raised in those cases (see People v. Porter, 165 A.D.3d 544, 84 N.Y.S.3d 356 [1st Dept. 2018], lv denied 32 N.Y.3d 1128, 93 N.Y.S.3d 266, 117 N.E.3d 825 [2018] ; People v. Reilly, 273 A.D.2d 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] ; People v. Rexach, 220 A.D.2d 362, 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] ; People v. Vasquez, 167 A.D.2d 236, 561 N.Y.S.2d 735 [1st Dept. 1990], lv denied 77 N.Y.2d 912, 569 N.Y.S.2d 944, 572 N.E.2d 627 [1991] ). The People analogize other New York felony offenses to 21 USC § 841(a)(1), however, this newly raised argument on appeal is unpreserved. In any event, the other New York felony offenses cited by the People either do not have broader knowledge requirements than Penal Law § 220.39 or are not analogous to 21 USC § 841(a)(1). The issue of whether defendant's federal conviction may nonetheless be an appropriate predicate felony based on the underlying accusatory instrument (compare People v. Simmons, 196 A.D.3d 154, 150 N.Y.S.3d 258 [1st Dept. 2021] ) is not before us on this appeal. This disposition renders defendant's remaining arguments academic.