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Justice Matthew J. D’Emic

 

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Jenkins moved for a determination finding he was not a predicate felon for New York (NY) sentencing purposes due to two foreign jurisdiction felony convictions. Prosecutors opposed arguing a prior Georgia (GA) conviction for aggravated assault, and a federal conviction for misprision of felony would constitute a predicate felony. Jenkins was charged with, among other things, assault in the third degree. Prosecutors argued GA’s definition of “serious bodily injury” closely mirrored NY’s definition for “seriously physical injury,” alleging GA’s aggravated assault statute directly corresponded to NY’s assault in the second degree. The court disagreed noting despite apparent similarities in the two definitions for serious injury, the statute were not equivalent such that a prior GA conviction would render one a predicate felon for sentencing in NY. It found GA’s statute contained no requirement there by a resulting injury at all, noting an assault in GA did not even require any physical contact. A comparison of the two statutes revealed that GA’s aggravated assault statute was not equivalent to NY’s felony assault provisions. Also, there was no NY equivalent for the federal felony. Neither the GA, nor the federal conviction constituted a predicate felony conviction for NY sentencing purposes.

Justice Matthew J. D’Emic

 

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Jenkins moved for a determination finding he was not a predicate felon for New York (NY) sentencing purposes due to two foreign jurisdiction felony convictions. Prosecutors opposed arguing a prior Georgia (GA) conviction for aggravated assault, and a federal conviction for misprision of felony would constitute a predicate felony. Jenkins was charged with, among other things, assault in the third degree. Prosecutors argued GA’s definition of “serious bodily injury” closely mirrored NY’s definition for “seriously physical injury,” alleging GA’s aggravated assault statute directly corresponded to NY’s assault in the second degree. The court disagreed noting despite apparent similarities in the two definitions for serious injury, the statute were not equivalent such that a prior GA conviction would render one a predicate felon for sentencing in NY. It found GA’s statute contained no requirement there by a resulting injury at all, noting an assault in GA did not even require any physical contact. A comparison of the two statutes revealed that GA’s aggravated assault statute was not equivalent to NY’s felony assault provisions. Also, there was no NY equivalent for the federal felony. Neither the GA, nor the federal conviction constituted a predicate felony conviction for NY sentencing purposes.