Opinion
5658/09 460 459.
03-08-2016
The PEOPLE of the State of New York Respondent, v. Kendall DAVIS, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Laura Boyd of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Laura Boyd of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for respondent.
Opinion
Order, Supreme Court, New York County (Richard D. Carruthers, J.), entered on or about January 22, 2014, which denied defendant's CPL 440.20 motion to set aside his sentence, unanimously reversed, on the law, defendant's second felony offender adjudication vacated and the sentence reduced to a term of 1 to 3 years. Appeal from judgment (same court and Justice), rendered May 11, 2011, convicting defendant, upon his plea of guilty, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 1 ½ to 3 years, dismissed as subsumed in the appeal from the order.
Defendant's prior conviction in Connecticut for sexual assault in the first degree cannot be considered a predicate felony offense in New York, because Connecticut General Statutes Annotated (CGSA) § 53a–70(a)(1) is broader than its New York counterparts, Penal Law §§ 130.35(1), 130.50(1), and 130.65(1). The New York statutes prohibit various sexual acts by forcible compulsion, which is defined (among other things) as the use of a threat “which places a person in fear of immediate death or physical injury [to someone] or in fear that [someone] will immediately be kidnapped” (Penal Law § 130.00 8; see People v. Thompson, 72 N.Y.2d 410, 534 N.Y.S.2d 132, 530 N.E.2d 839 1988 ). In contrast, CGSA § 53a–70(a)(1) does not contain any requirement that a threat issued to compel sexual intercourse must threaten immediate harm. Accordingly, the Connecticut statute is necessarily broader than its New York counterparts, and may not serve as a predicate offense (see People v. Muniz, 74 N.Y.2d 464, 467–468, 548 N.Y.S.2d 633, 547 N.E.2d 1160 1989 ).
In addition, since CGSA § 53a–70(a)(1) is a general intent statute (State v. Rothenberg, 195 Conn. 253, 258 n. 4, 487 A.2d 545 1985 ), “the prosecution need not establish that the accused intended the precise harm or precise result which resulted from his acts” (State v. Fagan, 280 Conn. 69, 77, 905 A.2d 1101, 1108 2006, cert. denied 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 2007 ). Accordingly, a conviction under the statute is warranted even if a rape committed by a person other than the defendant is the unintended result of the defendant's use or threatened use of force (see State v. Warren, 14 Conn. Appellant 688, 692–694, 544 A.2d 209, 212–213 1988, cert. denied 209 Conn. 805, 548 A.2d 442 1988, cert. denied 488 U.S. 1030, 109 S.Ct. 839, 102 L.Ed.2d 971 1989 ). In contrast, New York law requires that in order to establish accessorial liability the People must establish that a defendant, acting with the mental culpability required for the commission of the crime at issue, either solicited, requested, commanded, importuned, or intentionally aided another in committing the crime (Penal Law § 20.00). Accordingly, the Connecticut statute is broader than its New York counterparts in this regard as well.
MAZZARELLI, J.P., SWEENY, MANZANET–DANIELS, GISCHE, JJ., concur.