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The federal offense of making a false statement to secure a passport is not the equivalent of the state offense of offering a false instrument for filing, a judge in Manhattan has held.

Acting Supreme Court Justice Jill Konviser (See Profile) found that a defendant’s conviction to a federal crime in New Jersey does not make him a predicate felon and thus subject to a more severe penalty in New York. She said a key element in the two statutes is different.

People v. Gianquinto, 5277/13, involves a defendant in New York County, Peter Gianquinto, who was arrested on an identity theft charge.

A prior federal conviction can serve as the basis for a predicate felony conviction in New York if the offense is one that would constitute a felony in New York State. Here, the Manhattan district attorney argued Gianquinto’s federal crime is the equivalent of the state crime of first-degree offering a false instrument for filing.

But Konviser said the federal statute requires only that the accused made a false statement with the intent to obtain a passport, while the state statute requires an intent to defraud.

“The people’s point—what purpose other than fraud is intended by one who knowingly makes a false statement in a passport application—is well taken, but irrelevant for these purposes,” Konviser wrote. “What matters here is whether the intent to defraud is shared by the two statutes. Quite simply, it is not.”

David Krauss represented the defendant. Assistant District Attorney Christopher Hirsch argued for the prosecution.

Gianquinto pleaded guilty to first-degree identity theft and was sentenced to five years of probation. If Konviser had declared the defendant a predicate felon, he would have faced a state prison term of two-to-four years.