Opinion
2746/10.
Decided March 1, 2011.
Michael Pasinkoff, Esq., Assistant District Attorney, Prosecutor.
Roma Baran, Esq, Defendant's Counsel.
The issue before this Court is whether the defendant's prior conviction in the State of Tennessee for forgery pursuant to Tenn. Code Ann. § 39-14-112 (hereinafter referred to as the "Tennessee statute") qualifies as a felony conviction under New York law. The People contend that the Tennessee statute is equivalent to the New York crime of forgery in the second degree under Penal Law § 170.10. For the reasons that follow, this Court finds that the defendant's conviction under the Tennessee statute does not qualify as a felony under New York law. Accordingly, the defendant will not be sentenced as a second felony offender.
Discussion
A prior out-of-state conviction can serve as the basis for a predicate felony conviction in New York only when the out-of-state conviction "is for a crime whose elements are equivalent to those of a New York felony, and only when the out-of-state conviction carried with it an authorized sentence in excess of one year, and a sentence in excess of one year is also authorized for an offense in this State." People v. Thompson, 140 AD2d 652, 654 (2d Dept. 1988); see People v. Sailor, 65 NY2d 224, 2327 cert denied, 474 U.S. 982 (1985); People v. Gonzalez, 61 NY2d 586, 589 (1984); Penal Law § 70.06(1)(b)(i). To determine whether a foreign crime is equivalent to a New York felony, a court is required to employ "a strict equivalency standard" in which the court "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[.]" North v. Board of Examiners of Sex Offenders of State of New York , 8 NY3d 745 , 750-751 (2007); see People v. Gonzalez, 61 NY2d at 589; People v. Olah, 300 NY 96, 98 (1949); People v. Rota, 245 AD2d 133, 134 (1st Dept. 1997). "As a general rule, this inquiry is limited to a comparison of the crimes' elements as they are respectively defined in the foreign and New York statutes" and a court is prohibited from looking to language set forth in an accusatory instrument to determine whether an out-of-state conviction qualifies as a felony under New York law. People v. Muniz, 74 NY2d 464, 468 (1989); see People v. Gonzalez, 61 NY2d at 589.
The allegations contained in the accusatory instrument underlying the foreign conviction may not ordinarily be considered, because such instruments frequently contain nonessential recitals ( People v. Olah, 300 NY 98, 98 [1949]; see, e.g. People v. Spann, 56 NY2d 469). Since recitals that go beyond the statutorily required elements are not necessary to the determination of guilt, there can be no assurance that such allegations played any actual part in the foreign conviction (see, People ex rel. Goldman v. Denno, 9 NY2d 138, 142). Accordingly, resort to such recitals to ascertain the nature of the crime of which the defendant was convicted has generally been deemed improper ( see, People v. Gonzalez, 61 NY2d 586).
Additionally, the burden rests upon the People to establish that a defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a felony in New York; see CPL 400.21[a]; People v. Yancy, 86 NY2d 239, 247 (1995).
The Tennessee Statute
In this case, the Tennessee statute, which has an authorized sentence in excess of one year, provides that the crime of forgery is committed when a person "forges a writing with intent to defraud or harm another." See Tenn. Code Ann. § 30-14-114(a). A "writing" is defined as including "printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and symbols of value, right, privilege or identification." To "Forge" a writing under the Tennessee statute means to:
See Tenn. Code Ann. §§ 30.14-114(c); 40-34-111(b)(5).
(A) Alter, make, complete, execute or authenticate any writing so that it purports to: (i) Be the act of another who did not authorize that acts; [or] (ii) Have been executed at a time or place or in a numbered sequence other than was in fact the case; or (iii) Be a copy of an original when no such original existed; [or]
(B) Make false entries in books or records; [or]
(C) Issue transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of subdivision (b)(1)(A) or;
(D) Possess a writing that is forged within the meaning of subdivision (b)(1)(A) with intent to utter it in a manner specified in subdivision (b)(1)(C).
See Tenn. Code Ann. § 39-14-114(1)(A)-(D); Tennessee Pattern Criminal Jury Instructions § 11.05 Forgery; Smith, Tennessee Handbook Series, Criminal Offenses and Defenses in Tennessee,
Forgery Offenses (Title 39) (2010-2011 Ed.).
The New York Statutes
Unlike Tennessee's statute, under New York law the crimes of forgery and possession of a forged instrument are set forth in separate and distinct Penal Law provisions. With respect to forgery in New York, the misdemeanor third degree offense as set forth in Penal Law § 170.05, provides that a "person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument." A "written instrument" is defined under the Penal Law as "any instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person." See Penal Law § 170.00(1).
The Penal Law elevates the crime of forgery to a felony based upon the particular type of written instrument that has been falsely made, completed or altered. Thus, forgery in the second degree under Penal Law § 170.10, which is a class D felony, provides:
A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
1. A deed, will, codicil, contract, assignment, commercial instrument, credit card . . . or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; or
2. A public record or an instrument filed or required or authorized by law to be filed in or with a public officer or public servant; or
3. A written instrument officially issued or created by a public officer, public service or governmental instrumentality; or
4. Part of an issue of tokens, public transportation transfers, certificates or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of property or services; or
5. A prescription of a duly licensed physician or other person authorized to issue the same for any drug or any instrument or device used in the taking or administering of drugs for which a prescription is required by law.
Similarly, the Penal Law elevates the crime of forgery to the first degree offense under Penal Law § 170.15, a class C felony, also based on the particular type of written instrument that has been falsely made, completed or altered.
With respect to the possession of a forged instrument, the misdemeanor third degree offense as set forth in Penal Law § 170.20, provides that a "person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and when, with intent to defraud, deceive or injury another, he utters or possesses a forged instrument." A "forged instrument" means "a written instrument which has been falsely made, completed or altered." See Penal Law § 170.00(7). The Penal Law elevates the misdemeanor offense of criminal possession of a forged instrument in the third degree to a felony based upon the possession of the exact same type of written instruments that serve to elevate the crime of forgery in the third degree to forgery in the second degree and forgery in the first degree, respectively.
The term "written instrument" is defined under Penal Law § 170.00(1) and is set forth on page 3 supra.
As the People concede in their motion papers, see People's Affirmation at 5, an analysis of the elements of the Tennessee statute shows that it is not analogous to any particular felony under the Penal Law. See North v. Board of Examiners of Sex Offenders of State of New York , 8 NY3d 745 , 750-751 (2007); People v. Gonzalez, 61 NY2d at 589; People v. Olah, 300 NY at 98; People v. Rota, 245 AD2d at 134. Indeed, the Tennessee statute arguably contains some elements of at least eight different Penal Law statutes, some of which are misdemeanors and others that are felonies. Compare Tenn. Code Ann. § 30-14-114 with Penal Law §§ 170.05; 170.10; 170.15; 170.20; 170.25; 170.30; 165.71, and 165.72. The Tennessee statute punishes as a felony both the making, altering and possession of writings that constitute, inter alia, "printing or any other method of recording information" as well as "symbols of value, right, privilege or identification," see Tenn. Code Ann. § 30-14-114(b)(2), crimes that would be misdemeanors under New York law. See Penal Law §§ 170.00(1); 170.05; and, 170.20. On the other hand, the Tennessee statute also punishes as a felony the making, altering and possession of forged items that constitute, inter alia "money, coins, tokens, stamps . . . [and] credit cards," see Tenn. Code Ann. § 30-14-114(b)(2), crimes that would be felonies under New York law. See Penal Law §§ 170.10; 170.15; 170.25; and 170.30. In addition, the Tennessee statute punishes as a felony the making, altering or possession of a forged badge see, Tenn. Code Ann. § 30-14-114(b)(2), a crime that would be a misdemeanor under New York law. See Penal Law §§ 170.20; 170.05; People v. Makwana , 17 Misc 3d 296 (Crim Ct. NY Co. 2007). Moreover, the Tennessee statute punishes as a felony the making, altering and possession of a trademark, see Tenn. Code Ann. § 30-14-114(b)(2), crimes that are punished not under New York's forgery statutes, see People v. Vu, 161 Misc 2d 692, 694 (Sup Ct. NY Co. 1994), but rather, under New York's trademark and counterfeiting statutes, statutes that contain elements different than those set forth in the Tennessee statute. See Penal Law §§ 165.71, 165.72.
The Tennessee statute also punishes the forgery of "seals." As Penal Law §§ 170.10 and 170.15 do not specifically refer to the forgery of "seals," it would appear that a forged seal under New York law would constitute forgery in the third degree under Penal Law § 170.05.
As the elements of the Tennessee statute are not facially equivalent to any specific New York felony, a statutory comparison alone cannot serve as the basis for a finding that the defendant's Tennessee conviction qualifies as a prior felony offense under Penal Law § 70.06(1)(b)(i). People v. Muniz, 74 NY2d at 467-68; People v. Gonzalez, 61 NY2d at 589; People v. Olah, 300 NY at 98; see People v. Rota, 245 AD2d at 134; People v. Robinson, 133 AD2d 91 (2d Dept. 1987).
Accordingly, the People argue that this Court should examine the accusatory instrument upon which the defendant's Tennessee conviction is premised in order to determine whether the Tennessee statute is in fact equivalent to a New York felony. While a court may not ordinarily look to language set forth in an indictment to determine whether an out-of-state conviction qualifies as a felony under New York law, see People v. Muniz, 74 NY2d at 468; People v. Gonzalez, 61 NY2d 586, 589 (1984), an exception exists when the out of state conviction "renders criminal several different acts, some of which would constitute felonies and others of which would constitute only misdemeanors if committed in New York." People v. Muniz, 74 NY2d at 468.
In such cases, the recitals in the accusatory instrument that described the particular act or acts underlying the charge are necessary to the extent that they isolate and identify the statutory crime of which the defendant was accused. In such instances, the accusatory recitals are not merely surplusage, and they may properly be considered in determining whether Penal Law § 70.06(1)(b)(i) has been satisfied[.]
Id.; see People v. Gonzalez, 61 NY2d at 590-591; People ex. rel. Gold v. Jackson, 5 NY2d 243, 246 (1959; People v. Adams, 164 AD2d 546, 554-555 (2d Dept.), lv. denied, 77 NY2d 957 (1991).
For example, in People ex rel. Gold v. Jackson, 5 NY2d 243 (1959), a defendant had been convicted under a Florida statute that made it a felony "(1) to break and enter a building with intent to commit a felony therein, or, (2) to break out of a building having entered with intent to commit a crime therein." Id. at 246. At the time that Gold was decided, New York treated the former conduct proscribed by the Florida statute as a felony level offense and the latter conduct as a misdemeanor offense. Id. As the Florida statute "describe[d] two separate, distinct and different criminal acts," the Court of Appeals held that it was permissible to review the Florida accusatory instrument in which the defendant had been charged with "unlawfully and feloniously enter[ing] a dwelling in Miami with intent to commit a felony." Id. at 245-246. Indeed, as the Court of Appeals later explained in People v. Muniz, 74 NY3d at 469, review of the accusatory instrument in Gold "was necessary to enable the court to identify the precise crime of which the . . . [defendant] had been convicted and to ascertain its statutory elements, so that it could resolve whether the foreign crime was, in fact, the equivalent of a New York felony." See People v. Gonzalez, 61 NY2d at 590-591; People v. Bates, 299 AD2d 727 (3d Dept. 2002), lv. dened, 99 NY2d 626 (2003); People v. Adams, 164 AD2d at 556.
In the present case, as some of the writings specified in the Tennessee forgery statute would qualify as felonies under New York law (money, token, coins, stamps and credit cards), and others would qualify as misdemeanors (badges, "printing or any other method of recording information," "symbols of value, right, privilege or identification," see Tenn. Code Ann. § 30-14-114(b)[2]), this Court finds that a review of the Tennessee accusatory instrument is necessary to "isolate and identify" the precise "statutory crime" underlying the defendant's Tennessee conviction. People v. Muniz, 74 NY2d at 468; People v. Gonzalez, 61 NY2d at 590; People ex rel. Gold v. Jackson. 5 NY2d at 245-246; People v. Bates, 299 AD2d at 729-730; People v. Adams, 164 AD2d at 554-555. While the law is well-settled that "the allegations of the accusatory instrument may be referred to when necessary to clarify the statutory charge, to limit or narrow the basis for the conviction," it is also well-settled that allegations contained within an accusatory instrument, "may not be used to enlarge or expand the crime charged," People v. Gonzalez, 61 NY2d at 591; see People v. Adams, 164 AD2d at 555; People v. Benjamin, 7 AD2d 410, 413 (1st Dept. 1959), aff'd 8 NY2d 812, cert. denied, 364 U.S. 866 (1960).
The Tennessee accusatory instrument, a copy of which is attached to the People's motion, states in sum and substance that the defendant and another person, "on September 6, 2007 in Shelby County, Tennessee, and before the finding of this indictment, did unlawfully, knowingly, and with intent to defraud SUN TRUST BANK of the sum of Four-thousand dollars ($4,000), utter unto the said SUN TRUST BANK a certain paper writing of the following tenor, words and figures[.]"Immediately after this language, the indictment contains a photo copy of what appears to be a check from an unknown institution as well as a deposit ticket from Sun Trust Bank. The language in the indictment then continues as follows: "so that said paper writing purported to bear a signature not authorized as drawer, in violation of T.C.A. 39-14-114, against the peace and dignity of the State of Tennessee."
An analysis of the foregoing recitals set forth in the Tennessee accusatory instrument shows that the defendant was charged with the forgery of a writing, having forged either a "printing or any other method of recording information" or a "symbol[] of value, right, privilege or identification" See Tenn. Code Ann. § 30-14-114(b)(2), a crime that would constitutes a misdemeanor under the Penal Law, see Penal Law §§ 170.00(1); 170.05. The People argue, however, that since the indictment makes plain that a forged check was the basis for the Tennessee conviction, it is, therefore, the equivalent of the felony of forgery in the second degree under New York law. Not so. That the particular item alleged to have been forged in connection with the defendant's Tennessee conviction appears to have been a check and/or a commercial instrument and therefore must be equivalent of a felony in New York, misses the point. The Tennessee statute, on its face, draws no distinction between commercial instruments and any other writing constituting either a "printing or any other method of recording information" or a "symbol[] of value, right, privilege or identification." See Tenn. Code Ann. § 30-14-114(b)(2). Indeed, the existence of a commercial instrument is not a required element of the Tennessee statute, rather, the forgery of any "printing or any other method of recording information" or a "symbol[] of value, right, privilege or identification" will give rise to liability under the Tennessee statute. See Tenn. Code Ann. § 30-14-114(b)(2) (emphasis added). The defendant did not plead guilty in Tennessee to forging a commercial instrument. She plead guilty only to forging either a "printing or any other method of recording information" or a "symbol[] of value, right, privilege or identification." That the prosecuting authority in Tennessee relied on a commercial instrument to secure the indictment against the defendant does not change the ultimate fact the defendant plead guilty to a crime that constitutes a misdemeanor in New York. People v. Olah, 300 NY at 97. Indeed, "[t]here is a difference between the crime' of which a defendant was convicted and the evidence relied upon to establish that crime," People v. Olah, 300 NY at 98. Thus, the accusatory instrument's reference to a check is merely a "nonessential recital[]" and, as such, may not be considered by this Court as "recitals that go beyond the statutorily required elements are not necessary to the determination of guilt . . . [and] there can be no assurance that such allegations played any actual part in the foreign conviction." People v. Muniz, 74 NY2d at 468; see People ex. Rel. Goldman, v. Denno, 9 NY2d 138, 142 (1961); People v. Olah, 399 N.Y. at 98. Furthermore, and as noted above, when examining an accusatory instrument, the allegations contained therein may not be "used to enlarge or expand the crime charged." People v. Gonzalez, 61 NY2d at 591. The People seek to do just that by using the surplusage contained in the accusatory instrument to equate the Tennessee conviction to the crime of forgery in the second degree under Penal Law § 170.10(1). As the law is well-settled that recitals contained in an out-of-state accusatory instrument may be used only to "clarify the statutory charge," see People v. Gonzalez, 61 NY2d at 591, and the statutory charge in this case is equivalent only to a misdemeanor under New York law, see Penal Law §§ 170.00(1); 170.05, the People have failed to meet their burden of showing that the defendant's Tennessee conviction is equivalent to a felony under New York law. See People v. Yancy, 86 NY2d at 247. To find otherwise would erroneously and unfairly construe the defendant's Tennessee plea as an admission of guilt to a crime broader than the statute under which she was convicted. People v. Olah, 300 NY at 99. As the precise portion of the Tennessee statute that the defendant was charged with violating would constitute only a misdemeanor under the Penal Law, see Penal Law §§ 170.00(1); 170.05, the defendant's Tennessee conviction does not qualify as a felony under New York law. See Penal Law § 70.06(1)(b)(i). Accordingly, the defendant is not a second felony offender.
Conclusion
For the reasons stated above, this Court finds that the defendant's Tennessee forgery conviction does not qualify as a felony under New York law.
This constitutes the Decision and Order of the Court.