Opinion
62/04.
Decided December 2, 2004.
Following the defendant's plea of guilty to attempted criminal possession of a controlled substance in the third degree, in violation of Penal Law ("PL") §§ 110/220.16, and criminal sale of a controlled substance in the fifth degree, in violation of PL § 220.31, the People filed a predicate felony offender statement alleging that the defendant was convicted of robbery in North Carolina. The defendant opposed the use of the North Carolina robbery conviction as a predicate felony conviction. In a decision dated July, 15, 2004, the defendant's motion was denied. The defendant subsequently moved for reconsideration and reargument of the court's decision. In a decision dated September 23, 2004, this court granted the motion for reconsideration and reargument and adhered to the original decision. The defendant has now moved, again, for reconsideration and reargument. The defendant's second motion for reconsideration and reargument is granted and, for the reasons set forth below, I find that the North Carolina robbery conviction does not qualify as a predicate felony conviction.
In People v. Austin, 161 AD2d 275 (1990), appeal denied, 76 NY2d 852 (1990), the First Department found, in pertinent part, that the elements of robbery, as defined by the North Carolina courts, are equivalent to New York's crime of robbery in the third degree. Relying on People v. Austin, supra, this court denied the defendant's previous motions.
The first time the defendant moved for reconsideration and reargument, the defendant argued that between the court's decision in People v. Austin, supra, and the defendant's North Carolina conviction, the elements of the crime of robbery in North Carolina changed, thereby negating the holding in People v. Austin, supra. The defendant asserted that the North Carolina courts re-interpreted the elements of robbery, allowing robbery convictions for conduct that would not constitute the crime of robbery in New York. This court denied the defendant's first motion for reconsideration and reargument finding that the North Carolina law, with respect to the elements of robbery, had not changed subsequent to the decision in People v. Austin, supra, and that the holding in Austin was still good law.
In the instant motion, the defendant advances several arguments in support of his position that this court's previous two decisions were incorrect. The People argue that the arguments advanced by the defendant in the instant motion could have been made in his second motion and therefore, this motion for reconsideration and reargument should be denied. The People also assert that the defendant's motion should be denied on the merits. The People argue that People v. Austin, supra, is still good law as it applies to the robbery or in the alternative that the defendant's North Carolina conviction is the equivalent of grand larceny in the fourth degree. (PL § 155.30)
In New York, robbery is defined in Penal Law § 160.00.
Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: 1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.
In New York, the crime of robbery can be committed only when an individual's intent to commit larceny exists at the time that the individual uses, or threatens the use of force. ( People v. Smith, 79 NY2d 309; People v. Woods, 41 NY2d 279; People v. Lopez, 58 AD2d 516 [1st Dept. 1977])
In People v. Cochran, 10 AD3d 563 (1st Dept. 2004), the First Department held that a conviction for robbery in Maryland could not be used as a predicate felony conviction in New York inasmuch as the Maryland robbery statute does not require an intent to steal "at the time force is employed." The court therefore concluded that "[s]ince a person may thus be convicted in Maryland of a felony for conduct that would not be felonious in New York, defendant's Maryland robbery conviction does not qualify as a predicate felony." (Citations omitted)
This case was decided on September 28, 2004, five days after the defendant's second motion was denied.
Similarly, in North Carolina an individual can commit the crime of robbery even when the intent to steal was formed after force is used. ( State of North Carolina v. Faison, 330 N.C. 347, 359; State of North Carolina v. Green, 321 N.C. 594, cert. denied, 488 U.S. 900) Therefore, following the reasoning in People v. Cochran, supra, it is possible that a person can engage in conduct which would violate the North Carolina robbery statute and not violate New York's robbery statute. The First Department's decision in People v. Cochran is inconsistent with its earlier decision in People v. Austin and therefore effectively overrules People v. Austin. Thus, the defendant's North Carolina conviction for robbery should not be used as a predicate felony conviction.
The People, however, assert, that despite the fact that in North Carolina, as in Maryland, a robbery can be committed when the intent to steal is formed after force is used, People v. Austin, supra, is still good law. The People's assertion is based upon the argument that the North Carolina robbery statute is the equivalent of New York's grand larceny in the fourth degree (PL § 155.30), and therefore the North Carolina robbery conviction may be used as a predicate felony conviction. I disagree.
In New York, pursuant to PL § 155.30, "[a] person is guilty of grand larceny in the fourth degree when he steals property and when: . . . 5. The property, regardless of its nature and value, is taken from the person of another." In North Carolina, "[r]obbery at common law is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear." ( State v. Stewart, 255 N.C. 571, 572) The difference between robbery and larceny in North Carolina is that larceny does not include the element of violence or fear ( State v. Henry, 57 N.C. App. 168, 170, rev. denied, 306 N.C. 561). The courts in North Carolina have held that larceny is lesser included offense of the crime of robbery. ( People v. Pickard, 143 N.C.App. 485, 491; State v. Henry, supra) The People argue that since the North Carolina definition of larceny includes the taking of property "from the person of another," it is the equivalent of grand larceny in the fourth degree.
In People v. Asch, 107 AD2d 941, 943 (3rd Dept. 1985), the court held that the defendant's conviction for robbery in Indiana could not be used as a predicate felony. The Indiana statute provided that "[a] person who knowingly or intentionally takes property from another person or from the presence of another person: (1) By using or threatening the use of force on any person; or (2) By putting any person in fear * * * (Ind Code, § 35-42-5-1)." The court stated that "because a taking of property from the presence of another satisfies the Indiana definition of robbery, that offense is incompatible with New York's felony of grand larceny in the third degree, which requires that the taking be from the person of another." ( see also: People v. Auguste, 283 AD2d 373 [1st Dept. 2001]; People v. Cheatham, 168 AD2d 258, 259 [1st Dept. 1990])
Penal Law § 155.30(5) was originally entilted Grand Larceny in the Third Degree until November 1, 1986, when it was changed to Grand Larceny in the Fourth Degree.
As noted above, in North Carolina, larceny may be committed by taking property "from the person of another, or in his presence. . . ." (Emphasis added) Therefore, larceny in North Carolina is not the equivalent of grand larceny in the fourth degree.
In view of the fact that the North Carolina robbery statute is not the equivalent of either New York's robbery or grand larceny statutes, the defendant's conviction for robbery in North Carolina may not be used as a predicate felony conviction.
The foregoing is the decision and order of the court.