Opinion
Court of Appeals Case No. 20A-PC-1229
03-10-2021
Eduardo DEL TORO, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent
Attorneys for Appellant: Amy E. Karozos, Public Defender of Indiana, Alyson M. Kern, Deputy Public Defender, Indianapolis, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Tyler Banks, Supervising Deputy Attorney General, Indianapolis, Indiana
Attorneys for Appellant: Amy E. Karozos, Public Defender of Indiana, Alyson M. Kern, Deputy Public Defender, Indianapolis, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Tyler Banks, Supervising Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge.
[1] Eduardo Del Toro appeals the Elkhart Superior Court's order denying his petition for post-conviction relief. Del Toro claims that the post-conviction court clearly erred when it concluded that he was not denied effective assistance of trial counsel. Del Toro's claim is premised on trial counsel's failure to argue that a prior Texas burglary conviction could not support an Indiana SVF finding. On the unique facts of this case, we agree that Del Toro was denied effective assistance.
[2] We reverse.
Facts and Procedural History
[3] In August 2015, Del Toro lost control of the vehicle he was driving, crashed, and fled the scene. While fleeing, he discarded two bags of methamphetamine and a nine-millimeter handgun. Responding police officers apprehended Del Toro and placed him under arrest. The State charged him with four offenses, including Level 5 felony carrying a handgun without a license.
[4] The State later learned that Del Toro had been convicted in 2006 of second-degree felony burglary in Texas. See Prior Case Ex. Vol. I at 62, 64–65. Based on that conviction, the State believed Del Toro qualified as a "serious violent felon" ("SVF") under Indiana Code section 35-47-4-5 ("SVF statute"). As we discuss in more detail below, at the time of Del Toro's Indiana offenses a defendant did not qualify as an SVF unless there was substantial similarity between the elements of an out-of-state offense and a qualifying Indiana offense. See Ind. Code § 35-47-4-5(a)(1)(B) (2016). And if Del Toro qualified as an Indiana SVF based on the Texas conviction, the State could charge him with Level 4 felony unlawful possession of a firearm by an SVF. Id. § -5(c).
This provision was removed in the most recent version of the SVF statute that went into effect on July 1, 2020. See I.C. § 35-47-4-5 (2020).
[5] In summer 2016, the State filed two motions. The first sought leave to amend the information by adding a charge of unlawful possession of a firearm by an SVF. And the second asked the court to find that the elements for second-degree felony burglary under Texas Penal Code section 30.02 "are substantially similar to the elements" for Level 4 felony burglary under Indiana Code section 35-43-2-1(1), which is a qualifying offense under the SVF statute. Prior Case Appellant's App. Vol. II, p. 128; I.C. § 35-47-4-5(15)(B). At a hearing on the second motion, the State argued that not only is section 30.02 substantially similar to section 35-43-2-1(1)," but also that "[i]t is verbatim in many aspects." Prior Case Tr. Vol. II, pp. 4–7. In response, Del Toro's counsel remarked, "I don't dispute the fact that the laws are somewhat similar to each other in that regard and did some research concerning that issue."Id. at 7. The State highlighted counsel's concession "that the laws are similar" and asked the court to make a "preliminary determination as a matter of law." Id. The court then declared "that the statutes are substantially similar to each other." Id. And Del Toro was charged with unlawful possession of a firearm by an SVF.
[6] Del Toro's bifurcated, three-day jury trial began a few weeks later. In phase one of the trial, the jury found Del Toro guilty as charged. In phase two, which dealt in part with the unlawful possession by an SVF charge, the court informed the jury that Del Toro's Texas burglary conviction was for an offense that is "substantially similar to" Level 4 felony burglary in Indiana. Prior Case Tr. Vol. V, p. 56. The jury returned a guilty verdict. Because of that conviction, the court enhanced the term of Del Toro's sentence by eight years.
Del Toro appealed, alleging that three of his convictions were not supported by sufficient evidence and that the State engaged in prosecutorial misconduct; a panel of this court affirmed. Deltoro v. State , 20A05-1608-CR-1868, 2017 WL 2569794 at *1–5 (Ind. Ct. App. June 14, 2017), trans. denied.
[7] In October 2019, Del Toro filed a petition for post-conviction relief, alleging he received ineffective assistance of trial counsel due to counsel's failure to argue that the Texas burglary conviction did not support an Indiana SVF finding. In December, the post-conviction court held an evidentiary hearing. Del Toro's attorney submitted three exhibits and argued, in part, "Had [trial] counsel argued that the two statutes were not substantially similar it's unlikely that Del Toro would have been convicted of unlawful possession of a firearm by a serious violent felon." Tr. p. 5. The State did not submit any evidence or make any argument.
[8] About six months later, in June 2020, the post-conviction court denied Del Toro's petition, finding the two statutes "were not markedly different" and that "[a]ny concession counsel may have made ... during the pretrial hearing was reasonable based on the law and the [trial court's] reasoning." Appellant's App. Vol. II, p. 98. Thus, the post-conviction court concluded that Del Toro failed to demonstrate that he received ineffective assistance of trial counsel.
[9] Del Toro now appeals.
Standard or Review
[10] When appealing from the denial of post-conviction relief, the petitioner proceeds from a negative judgment. See, e.g. , Walker v. State , 903 N.E.2d 1022, 1024 (Ind. Ct. App. 2009), trans. denied. We will reverse only if the evidence unmistakably and unerringly leads to a conclusion opposite the one reached by the post-conviction court. Id. In making that determination, we review the post-conviction court's order to ensure the court's findings are supported by the facts and the conclusions are supported by the law. Ind. Post-Conviction Rule 1(6) ; Pruitt v. State , 903 N.E.2d 899, 905 (Ind. 2009). Though we do not defer to the court's legal conclusions, we review the factual findings for clear error—that which leaves us with a definite and firm conviction that a mistake has been made. State v. Cozart , 897 N.E.2d 478, 482 (Ind. 2008) (quotation omitted).
Discussion and Decision
[11] Del Toro contends that the post-conviction court erred in concluding that trial counsel was not ineffective for failing to argue that Del Toro's Texas burglary conviction does not qualify him as an SVF in Indiana. To succeed on an ineffective-assistance claim, a defendant must make two showings: (1) that counsel rendered deficient performance; and (2) that the deficient performance resulted in prejudice. Strickland v. Washington , 466 U.S. 668, 687, 694 (1984) ; Bobadilla , 117 N.E.3d 1272, 1280 (Ind. 2019). Del Toro's claim, however, hinges on whether he is correct that the Texas conviction does not support an SVF finding. Thus, before considering whether Del Toro was denied effective assistance of counsel, we must first determine whether, as required by the SVF statute, the elements of the Texas burglary offense "for which the conviction was entered are substantially similar to the elements" of Level 4 felony burglary in Indiana. I.C. § 35-47-4-5(a)(1)(B).
I. The elements of the two offenses are not substantially similar.
[12] The elements of two offenses are substantially similar under the SVF statute when "they have common core characteristics that are largely, but not identically, alike in degree or extent." State v. Hancock , 65 N.E.3d 585, 587 (Ind. 2016). In evaluating those common core characteristics, "elements may be substantially similar with respect to general characteristics such as wording and type" or "with respect to specific characteristics such as the underlying conduct sought to be regulated." Id. However, the elements are not substantially similar when the out-of-state statute captures more conduct than the comparable Indiana statute. See id. at 589 (citing State v. Bazan , 45 N.E.3d 856, 859 (Ind. Ct. App. 2015), trans. denied ); Berberena v. State , 86 N.E.3d 199, 202 (Ind. Ct. App. 2017), trans. denied.
[13] Determining whether the elements of two offenses are substantially similar is a legal question that we consider de novo. Ind. Code § 34-38-4-3 ; Hollingsworth v. State , 907 N.E.2d 1026, 1030–31 (Ind. Ct. App. 2009). To make that determination here, we must compare the Texas statute under which Del Toro was convicted with the comparable Indiana statute at the time of his Indiana offense. See Hollingsworth , 907 N.E.2d at 1031.
[14] Del Toro was convicted of second-degree felony burglary under Texas Penal Code section 30.02. The statute specifies three distinct, alternative ways a person can commit the offense: without the owner's consent, the accused (1) enters a habitation with the intent to commit a felony, theft, or assault; (2) remains concealed in a habitation with the intent to commit a felony, theft, or assault; or (3) enters a habitation and commits or attempts to commit a felony, theft, or assault. Tex. Penal Code § 30.02(a)(1)–(3) (2006). To properly compare "the elements of the crime for which the conviction was entered," I.C. § 35-47-4-5(a)(1)(B), we must analyze the particular offense for which Del Toro was convicted. The record reveals that he was charged with and pleaded guilty to second-degree felony burglary under subsection (a)(3). Prior Case Ex. Vol. I, at 62, 65. The elements of that offense are
As we discuss in more detail later, it does not appear that any party below identified or addressed the subsection of the Texas statute under which Del Toro was actually convicted. See Prior Case Appellant's App. Vol. II, p. 128 (the State referencing section 30.02 generally); Prior Case Tr. Vol. II, p. 5 (the State referencing language in subsection (a)(1)); id. at 7 (Del Toro's trial counsel referencing "the laws" generally, and the trial court referencing section 30.02 as a whole); Tr. p. 4 (Del Toro's post-conviction counsel referencing language in subsection (a)(1)); Appellant's App. Vol. II, pp. 97–98 (post-conviction court referencing section 30.02 generally). Even on appeal, the State—with no citation to the record—incorrectly states that Del Toro was convicted under subsection (a)(1). Appellee's Br. at 10.
(1) without the effective consent of the owner;
(2) a person enters a habitation; and
(3) commits or attempts to commit a felony, theft, or an assault.
Tex. Penal Code § 30.02(a)(3).
[15] The analogous serious violent felony in Indiana is Level 4 felony burglary. See I.C. § 35-47-4-5(15)(B). The comparable elements are
(1) a person breaks and enters;
(2) the dwelling of another person; and
(3) does so with the intent to commit a felony or theft.
Ind. Code § 35-43-2-1(1) (2016)
[16] In comparing the elements of the two offenses, we first note that the use of different terminology does not affect our analysis if the statutory meaning is fundamentally the same. Hollingsworth , 907 N.E.2d at 1031. Looking at the second element for each offense, the statutory meanings of "habitation" in Texas and "dwelling" in Indiana are fundamentally the same. Compare Tex. Penal Code § 30.01(1), with I.C. § 35-31.5-2-107. Thus, those different terms do not affect the outcome. However, the outcome is affected by two significant differences: (1) when culpability is established; and (2) the requisite underlying offense supporting burglary. These differences establish the elements of the two offenses do not have "common core characteristics that are largely, but not identically, alike in degree or extent." Hancock , 65 N.E.3d at 587.
Because of this similarity, and to avoid unnecessary confusion, we will refer to both terms as "home" throughout the remainder of the opinion.
There is a slight difference between the Texas requirement that a person enters "without the effective consent of the owner" and the Indiana requirement that a person "breaks and enters." In Indiana "a breaking is proved by showing that even the slightest force was used to gain unauthorized entry." Hancock , 65 N.E.3d at 591 (cleaned up). But in Texas, "[f]orced entry is not ... an element of burglary." Jackson v. State , 424 S.W.3d 140, 148 (Tex. App. 2014). However, to "enter" in Texas means to "intrude ... any part of the body; or any physical object connected with the body." Tex. Penal Code § 30.02(b). Thus, while force is not technically required for burglary in Texas, under most circumstances intruding without consent of the owner will include "the slightest force." A situation where this is not true would be walking through an open door, which could support burglary in Texas but not in Indiana. Compare Jackson , 424 S.W.3d at 148, with Hooker v. State , 120 N.E.3d 639, 646 (Ind. Ct. App. 2019), trans. denied. However, for reasons provided in this section, we need not rely on this minor difference.
1. Establishing culpability for the burglary
[17] In Texas, culpability for second-degree felony burglary under section 30.02(a)(3) is established when a defendant, once inside the home without consent, either commits or attempts to commit a felony, theft, or assault. In other words, for this particular burglary, a defendant's intent at the time of entry is irrelevant. DeVaughn v. State , 749 S.W.2d 62, 65 & n.4 (Tex. Crim. App. 1988) (en banc); Scroggs v. State , 396 S.W.3d 1, 17 n.12 (Tex. App. 2010). What matters is the defendant's criminal conduct once the defendant is inside the home. See, e.g. , Langs v. State , 183 S.W.3d 680, 686 (Tex. Crim. App. 2006). Indeed, under subsection (a)(3), commission of the underlying crime is an element of burglary. See Stahamnn v State , 548 S.W.3d 46, 62 (Tex. App. 2018). For this reason, the State can obtain a conviction for either the burglary or the criminal act inside the home, but not both. Langs , 183 S.W.3d at 686.
[18] The opposite is true in Indiana. Culpability for Level 4 felony burglary under section 35-43-2-1(1) is established the moment a defendant unlawfully crosses the threshold of person's home with the intent to commit a felony or theft. The defendant must have "a specific criminal intent which coincide[s] in time with the acts constituting the breaking and entering." Freshwater v. State , 853 N.E.2d 941, 943–44 (Ind. 2006) (quoting Gebhart v. State , 531 N.E.2d 211, 212 (Ind. 1988) ). Because the burglary is complete at this point, additional criminal conduct after entry is a distinct transgression. Swaynie v. State , 762 N.E.2d 112, 114 (Ind. 2002). In this scenario, the State can generally obtain a conviction for both that conduct and the burglary. See id. at 114–15; Wadle v. State , 151 N.E.3d 227, 242, 255 (Ind. 2020).
This is analogous to what is required for second-degree felony burglary under Texas Penal Code section 30.02(a)(1), but as we explained above, Del Toro was not convicted under that subsection.
A defendant lacking this specific intent at the time of entry could still be convicted of residential entry or criminal trespass. I.C. §§ 35-43-2-1.5, -2(5)(B). But, unlike Level 4 felony burglary, neither of those offenses is a "serious violent felony." See I.C. § 35-47-4-5(b).
[19] In short, the way in which culpability is established for each of the two crimes reveals that Texas Penal Code section 30.02(a)(3) seeks to regulate different and more conduct than Indiana Code section 35-43-2-1(1). We now turn to the second significant difference.
2. The category of underlying offense necessary for burglary
[20] To be convicted of second-degree felony burglary in Texas under subsection (a)(3), the defendant must commit or attempt to commit "a felony, theft, or an assault." Tex. Penal Code § 30.02(a)(3). Theft and assault are base-level misdemeanor offenses, id. §§ 31.03(e), 22.01(b), (c), and a person can commit assault in three distinct ways, id. § 22.01(a).
[21] In Indiana, on the other hand, the intended offense must be either a felony or theft, I.C. § 35-43-2-1, and theft is a base-level misdemeanor offense, I.C. § 35-43-4-2. Unlike Texas, Indiana does not criminalize assault. But the Texas assault offenses are akin to attempted battery or criminal recklessness in Indiana, both of which are base-level misdemeanors. Compare Tex. Penal Code §§ 22.01 (a) – (c), with I.C. §§ 35-41-5-1, -42-2-1(c), -2(a). Thus, while multiple misdemeanors can support a burglary conviction in Texas, theft is the only misdemeanor that can support a burglary conviction in Indiana.
[22] The State recognizes this distinction but describes the possibility of misdemeanor assault supporting Level 4 felony burglary as "an unlikely scenario," an "academic possibility," a "mere triviality," and a "hypothetical potentialit[y]." Appellee's Br. at 7, 11 12. The record, however, belies the State's dismissive characterizations. Del Toro's charging information for second-degree felony burglary in Texas alleges that he "intentionally enter[ed] a habitation, without the effective consent of [the homeowner], and attempted to commit or committed an assault against [the homeowner]." Prior Case Ex. Vol. I at 62 (emphasis added). And Del Toro pleaded guilty to the offense a few months later. Id. at 65. Thus, "this hypothetical burglary-to-commit-misdemeanor-battery scenario" is not, as the State asserts, either "hypothetical" or an "academic possibility of a broader prohibition." Appellee's Br. at 12. It happened here. And notably, had Del Toro been charged in Indiana based on the very same conduct, he could not be found guilty of Level 4 felony burglary. Cf. Berberena , 86 N.E.3d at 204 (observing that there is not substantial similarity when a defendant's conduct could result in conviction under the out-of-state statute but not under the comparable Indiana statute).
Our review of Texas caselaw reveals that it is not uncommon for a defendant's burglary conviction to be predicated on an assault. See, e.g., Morgan v. State , 501 S.W.3d 84, 88, 92–93 (Tex. Crim. App. 2016) ; Huff v. State , No. 13-19-333-CR, 2020 WL 4589752, at *3–4 (Tex. App. Aug. 6, 2020) (not designated for publication) ; Williams v. State , No. 12-11-126-CR, 2011 WL 3505274, at *1–2 (Tex. App. Aug. 10, 2011) (not designated for publication) ; Morrow v. State , No. 06-10-00125-CR, 2011 WL 882839, at *5–6 (Tex. App. Mar. 15, 2011) (not designated for publication) ; cf. Hancock , 65 N.E.3d at 590 (recognizing that despite seemingly broader language in Ohio's burglary statute, "judicial interpretation" painted a "different picture")
[23] In sum, culpability for the two offenses is established in vastly different ways, and the Texas offense both captures more conduct and is supported by a broader array of underlying crimes. These differences establish that second-degree felony burglary under Texas Penal Code section 30.02(a)(3) and Level 4 felony burglary under Indiana Code section 35-43-2-1(1) "have markedly different thresholds for establishing a violation," State v. Bazan , 45 N.E.3d 856, 859 (Ind. Ct. App. 2015), trans. denied. We therefore conclude that the elements of the two offenses are not "substantially similar" as required by the SVF statute. And so, Del Toro's Texas burglary conviction does not qualify him as an SVF. Yet, this conclusion does not necessarily mean Del Toro was denied effective assistance of trial counsel. We now address that claim.
II. Del Toro was denied effective assistance of trial counsel.
[24] Del Toro argues that trial counsel's failure to argue that the Texas burglary conviction does not support an Indiana SVF finding was deficient performance that resulted in prejudice. See Appellant's Br. at 22–24; Strickland , 466 U.S at 687. On the unique facts and circumstances of this case, we agree.
1. Deficient Performance
[25] When analyzing whether trial counsel's performance was deficient, we ask whether, " ‘considering all the circumstances,’ counsel's actions were ‘reasonable [ ] under prevailing professional norms.’ " Wilkes v. State , 984 N.E.2d 1236, 1240 (Ind. 2013) (quoting Strickland , 466 U.S. at 668 ). Trial counsel is afforded considerable discretion in choosing strategy and tactics, and judicial scrutiny of that discretion is highly deferential. Id.
[26] Here, the post-conviction court concluded that Del Toro failed to show trial counsel's performance was deficient, relying on three findings: (1) counsel "did, in fact attempt to argue" that the Texas burglary conviction "was perhaps different than in Indiana"; (2) "[a]ny concession counsel may have made that the statutes were substantiality similar during the pretrial hearing was reasonable based on the law and the [trial court's] reasoning;" and (3) "[c]ounsel was not called to testify at the post-conviction hearing." Appellant's App. Vol. II, pp. 98–99. Each of these findings, however, "leaves us with a definite and firm conviction that a mistake has been made," Cozart , 897 N.E.2d at 482, and thus do not support the post-conviction court's ultimate conclusion.
[27] First, the record reveals Del Toro's counsel did not "attempt to argue" that the elements of the two burglary offenses are sufficiently dissimilar. At the pretrial hearing, the State argued the statutes were substantially similar by referencing—albeit incorrectly—the language of Texas Penal Code section 30.02(a)(1). See Prior Case Tr. Vol. II, pp. 5–6. Trial counsel did not clarify that Del Toro was not convicted under that subsection; counsel instead responded, "I don't dispute the fact that the laws are somewhat similar to each other in that regard and did do some research concerning that issue." Id. at 7. The State then directly referred to counsel "not disputing that the laws are similar" and asked the court to make a determination. Id.
[28] Second, trial counsel's "concession," was not "reasonable based on the law" and the trial court's "reasoning." As we explained in Section I, the elements of the Texas burglary for which Del Toro was convicted are not substantially similar to the elements of the comparable Indiana SVF. Moreover, the trial court's "reasoning" was flawed because it found that the statutes in their entirety "are substantially similar to each other." Prior Case Tr. Vol. II, p. 7. But again, the SVF statute in force at the time required substantial similarity with the elements of the out-of-state conviction "for which the conviction was entered." I.C. § 35-47-4-5(a)(1)(B). Here, trial counsel failed to identify the elements of that crime.
[29] Finally, the post-conviction court erred in relying on the fact that Del Toro did not call counsel to testify at the evidentiary hearing. Though a post-conviction petitioner's failure to present evidence from trial counsel can support an inference that counsel would not have corroborated the petitioner's allegations, this proposition is applicable when the allegations involve questions of fact or credibility concerns. McElroy v. State , 864 N.E.2d 392, 396 (Ind. Ct. App. 2007). Del Toro's allegation of ineffective assistance does not involve a question of fact or credibility; it implicates a pure question of law. And, as Del Toro points out, trial counsel's "actions on that issue" are in the record, and "resolving the issue requires no examination of matters" outside of the record. Appellant's Br. at 16–17. Thus, it is irrelevant that trial counsel did not testify at the hearing.
[30] For these reasons, the post-conviction court's findings do not support its conclusion that Del Toro failed to show that trial counsel rendered deficient performance. It was objectively unreasonable for counsel to fail to (1) identify the elements of the Texas burglary offense for which Del Toro was convicted; and (2) argue that the elements of that offense are not substantially similar to the comparable Indiana serious violent felony. We hold that these errors amount to deficient performance under Strickland , and the post-conviction court clearly erred in finding otherwise.
[31] Our analysis, however, does not end here. We must now address Strickland ’s second prong: whether counsel's mistakes prejudiced Del Toro.
2. Prejudice
[32] To demonstrate prejudice in most cases, the defendant must show "a reasonable probability that ... the result of the proceeding would have been different" but for attorney error. Strickland , 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The reason we require a showing of prejudice is because "a defendant has a right to effective representation, not a right to an attorney who performs his duties mistake-free." Weaver v. Massachusetts , 137 S. Ct. 1899, 1910 (2017) (quotation omitted).
[33] The post-conviction court found that Del Toro failed to establish prejudice, reasoning that "[t]he issue of similarity of the statutes was put before the [trial court] by counsel, and the [trial court] applied the facts and law in determining that they were substantially similar." Appellant's App. Vol. II, p. 99. But this reasoning also "leaves us with a definite and firm conviction that a mistake has been made," Cozart , 897 N.E.2d at 482, and thus does not support the post-conviction court's ultimate conclusion.
[34] Trial counsel failed to put the elements of Del Toro's Texas offense "for which the conviction was entered" before the trial court, and thus, the court did not consider the appropriate Texas statute or conduct the proper analysis under the SVF statute. Further, the State's flawed substantial-similarity argument was never challenged. See Emerson v. State , 695 N.E.2d 912, 918 (Ind. 1998) (observing that prejudice occurs when a conviction or sentence "has resulted from a breakdown of the adversarial process that rendered the result unreliable"). Had trial counsel disputed the State's argument and put the proper substantial-similarity inquiry before the trial court, there is a reasonable probability that the court would have found that the elements of the two offenses are not substantially similar. If the trial court had reached that conclusion, Del Toro would not have qualified as an SVF in Indiana and could not have been convicted of unlawful possession of a firearm by an SVF.
[35] When evaluating an ineffective-assistance claim, "the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Strickland , 466 U.S. at 696. And here, it was fundamentally unfair for Del Toro to be convicted as an SVF when he does not have a qualifying conviction under the SVF statute. But for trial counsel's errors, Del Toro would not have been found guilty of unlawful possession of a firearm by an SVF. As a result, Del Toro has established prejudice.
Conclusion
[36] The trial court found Del Toro qualified as an SVF because of a prior Texas burglary conviction, and he was convicted of Level 4 felony unlawful possession of a firearm by an SVF. However, Del Toro cannot be convicted as an SVF because the elements of the Texas burglary for which he was convicted are not substantially similar to the elements of the comparable Indiana burglary. On these unique facts, trial counsel's failure to argue that the Texas conviction could not support an Indiana SVF finding amounts to ineffective assistance. For these reasons, we reverse the post-conviction court and remand for further proceedings consistent with this opinion.
Reversed
Altice, J., and Weissmann, J. concur.