New York law

A man was sentenced to two years probation following his plea of guilty to attempted home invasion in the first degree in another state. He was subsequently sentenced to one hundred eighty days in jail.

Through a felony complaint, the man was charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees. An indictment was filed and the man was charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

Subsequently, the man plead guilty to criminal sale of a controlled substance in the third degree with the promise that upon the completion of a drug rehabilitation program, supervised by one institution, he would be allowed to withdraw his plea of guilty. The court stated that the man would re-plead to a misdemeanor and receive a sentence of time served. If, however, he failed to complete the drug rehabilitation program, the court promised to sentence him to four and half to nine years in jail.

Afterward, the man was released from custody on condition that he will enter and remain in the drug program. Less than one week later, the court received information that the man had left the drug rehabilitation program without permission and a warrant was issued for his arrest.

The man was involuntarily returned on a warrant after he was arrested and indicted with assault with intent to murder, assault with intent to do great bodily harm less than murder and assault with a dangerous weapon. He then pleaded to assault with intent to murder and felony firearms in the third judicial circuit. On the same day, the man signed a pretrial settlement offer and notice of acceptance.

He was subsequently sentenced to an indeterminate term of imprisonment of from two to fifteen years, on the count charging assault to murder, and to two years on the count charging felony firearms, to be served consecutively.

After being involuntarily returned to the county’s Supreme Court after an extradition request, the man appeared for sentencing with his attorney. At that time, the man’s attorney indicated that the prosecutor had provided a statute for breaking and entering in another state, which would appear to be the same as the state’s burglary law. Further, the man’s attorney attested that his client understood that he would be receiving a sentence of four and half to nine years, concurrent with the other sentence. The man was then arraigned on predicate felony information which specified the predicate felony to be the attempted home invasion charge set forth above.

The man was notified by the court clerk that he could challenge any allegation in the statement on the grounds that the conviction was unconstitutionally obtained. Based on records, the failure to challenge any previous conviction in the statement, at the time a waiver on the man’s part of any claim of unconstitutionality, and following a statement by the court clerk. The man stated that he did not wish to challenge any allegation in the statement.

The man was then sentenced, as a second felony offender, based on his previous conviction of attempted home invasion in the first degree in other state, to four and half to nine years’ imprisonment, to run concurrently with the previous case.

Afterward, the man filed with the court a combined motion to set aside his sentence and a petition for resentencing under the law. Consequently, the court denied the man’s motion, without a hearing, in a six-page written decision and order. Further, the man’s motion to set aside the sentence on the ground that he was improperly sentenced as a second felony offender is granted.

The man also argues that the statute to which he plead guilty does not constitute a felony under New York law. Notwithstanding the fact that the man did not raise any challenges to his status as a second felony offender at the time of sentencing, the court stated that the criminal law recognizes illegality as a basis for setting aside a sentence. Moreover, a criminal offender may seek such relief at any time after the entry of a decision.

Based on records, as a matter of discretion and in the interest of justice, a judge may vacate a plea if the record reflects that the offender was wrongly adjudicated as a second felony offender based on a felony conviction in another forum that would not constitute a felony under the New York law despite the fact that the man failed to challenge his status as a second felony offender at the time of his sentencing.

Subsequently, the man is not asserting that his prior conviction was unconstitutionally obtained, only that under their criminal law, his conviction for attempted home invasion in the first degree was not equivalent to any New York felony under the penal law, and therefore his sentence, based on his status as a second felony offender, was unlawful.

The opponent then argues that the case is governed by the law which provides that the man who fails to challenge the prior felony at the time of his sentencing waives the issue.

Sources revealed that under the New York penal law a person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling. The similar other statute, under which the man was convicted, reads in relevant part, a person is guilty of home invasion in the first degree, if they break or enter with intent to commit a felony in the dwelling.

Moreover, the other state’s law about home invasion offense is not the equivalent of burglary in the first degree under New York law, since, unlike the New York statute, their law does not require a person to knowingly enter a dwelling. In addition, the man was convicted of attempt in other state, yet another reason to grant his motion.

As a result, the man cannot be lawfully adjudicated a second drug crime felony offender on the basis of his prior conviction for attempted home invasion in other state.

As a general rule, the inquiry is limited to a comparison of the crimes’ elements as they respectively defined in the foreign and New York penal statutes. The allegations contained in the critical instrument underlying the foreign conviction may ordinarily not be considered, because such instruments frequently contain nonessential presentations.

For that reason, the court stated that opting to such recitals to ascertain the nature of the crime of which the man was convicted has generally been considered improper.

In any event, the second felony drug offender Information was defective inasmuch as it alleged that the man was convicted of home invasion in the first degree, when, in fact, the man was convicted of attempted home invasion in the first degree.

After the court considered the standards outlined and the facts of the instant case, it is manifest that substantial justice dictates that the man’s motion to set aside the sentence, on the grounds that his adjudication as a second cocaine felony offender was unlawful and should be granted.

Consequently, the court granted the man’s motion to set aside the sentence.

Whenever you engaged on a drug related crime or offense, you can seek legal assistance from the Queens County Drug Attorney. You can also have the legal help of the Queens County Criminal Lawyer to help you to maintain your rights. You can visit or call Stephen Bilkis and Associates office for your queries.