DECISION AND ORDER The defendant is charged with attempted assault in the first degree and other related charges. The defendant challenges the People’s designation of his status as a second violent predicate felon, which relies on a Connecticut conviction. The People oppose the defendant’s motion. For the reasons set forth, the Court finds that the People failed to meet their burden of establishing that the defendant’s Connecticut conviction qualifies as a felony under New York law. Defendant’s Predicate Status Penal Law §70.04 requires the imposition of enhanced sentences for those found to be predicate felons (see People v. Helms, 30 NY3d 259, 263 [2017]). An out-of-state offense will constitute a predicate felony conviction when: (a) the sentence exposure for the out-of-state offense is more than one year, and (b) the out-of-state offense is “for a crime whose elements are equivalent to those of a New York felony” (People v. Gonzalez, 61 NY2d 586, 589 [1984]; see Penal Law §70.04 [1][b][i]). In determining whether an out-of-state offense is equivalent to a New York felony, “[the] inquiry is limited to a comparison of the crimes’ elements as they are respectively defined in the out-of-state and New York penal statutes” (People v. Muniz), 74 NY2d 464, 467-68 [1989]). “When a statute-to-statute comparison reveals differences in the elements such that it is possible to violate the foreign statute without engaging in conduct that is a felony in New York, the foreign statute may not serve as a predicate felony” (People v. Yusuf, 19 NY3d 314, 321 [2012]). The People have the burden to establish that a defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a felony in New York (see People v. Yancy, 86 NY2d 239, 247 [1995]; People v. Salako, 165 AD3d 846, 847 [2d Dept 2018]). Under New York’s “strict equivalency” standard for convictions rendered in other jurisdictions, any “technical distinctions between the [elements of the] New York and foreign penal statutes can preclude use of a prior felony as a predicate for enhanced sentencing” (People v. Ramos, 19 NY3d 417, 440 [2012]). In their predicate felony statement, the People rely on the defendant’s 2017 conviction for Strangulation or Suffocation in the Second Degree, a Class D felony under Conn. Gen. State §53a-64bb, which provides that: “ A person is guilty of strangulation or suffocation in the second degree when such person restrains another person by the neck or throat or obstructs such other person’s nose or mouth with the intent to impede the ability of such other person to breathe or restrict blood circulation of such other person and such person impedes the ability of such other person to breathe or restricts blood circulation of such other person.” The People argue that Conn. Gen. State §53a-64bb is equivalent to Penal Law §121.12, Strangulation in the Second Degree, a Class D felony, which provides that: “A person is guilty of strangulation in the second degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, and thereby causes stupor, loss of consciousness for any period of time, or any other physical injury or impairment.” Penal Law §121.11, a Class A misdemeanor, provides that: “A person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she: (a) applies pressure on the throat or neck of such person; or (b) blocks the nose or mouth of such person.” The defense argues that Conn. Gen. State §53a-64bb is not the equivalent to Penal Law §121.12 because Penal Law §121.12 requires the additional elements of injury or impact, in the intent to obstruct breathing or blood circulation. Specifically, the defense argues that Penal Law §121.12 requires that the defendant either cause “physical injury or impairment, or cause stupor, or the loss of consciousness,” and those results are not included under Conn. Gen. State §53a-64bb. On the other hand, the People argue that the language under Conn. Gen. State §53a-64bb “…impedes the ability of such other person to breathe or restricts blood circulation” is equivalent to the results listed in Penal law §121.12, “stupor, loss of consciousness for any period of time, or any other physical injury or impairment.” Specifically, the People argue that the results of impeding “the ability of such other person to breathe or restricts blood circulation” under Conn. Gen. State §53a-64bb qualifies as “impairment” under Penal Law §121.12. In doing so, the People point to the dictionary and medical definitions of “impairment.” There is no statutory definition for “impairment.” However, Penal Law §10.00(9) defines “physical injury” as the “impairment of physical condition or substantial pain.” In construing Penal Law §121.12, no New York court has distinguished or defined “physical injury” separate from “impairment.” Instead, New York courts addressing “physical injury or impairment” under Penal Law §121.12 point solely to Penal Law §10.00(9). For example, in People v. Carte, 113 AD3d 191, 193-194 (3d Dept 2013), there was no claim that the victim suffered a stupor or loss of consciousness. Pointing to Penal Law §10.00 (9), the court held that the defendant caused “physical injury or impairment” under Penal Law §121.12, where the victim complained of pain and where the police observed and photographed cuts, scratches, and abrasions “all over” the victim’s top lip, and nose, as well as a red mark on the victim’s neck. Additionally, the victim was treated at a hospital emergency room, and the treating physician observed abrasions and tenderness on both sides of the victim’s face and the right side of the victim’s neck, including signs of trauma that “could be” claw marks resulting from strangulation. In People v. Parker, 127 AD3d 1425, 1427 (3d Dept 2015), the court again pointed to Penal Law §10.00(9) when holding that the evidence supported a conviction under Penal Law §121.12, where the defendant choked the victim, and the victim felt severe pain throughout the entire neck and back and could not speak. Furthermore, medical testimony indicated that the victim was “diagnosed with a tracheal contusion and multiple scratches and abrasions and that the area around her throat was very painful to the touch.” Similarly, in People v. Peasley, 208 AD3d 1466, 1469 (3d Dept 2022), the court determined that the evidence established that the defendant’s actions caused the victim to suffer “physical injuries or impairment from his obstructive act,” where the victim sustained bruising to the neck and nose, which resulted in “significant” pain resembling “whiplash.” An officer also observed that the victim had “ligature marks” on each side of her neck, and the victim sought medical attention. Notably, in People v. White, 100 AD3d 1397, 1398-1399 (4th Dept 2012), there was no evidence in the grand jury that the defendant caused a stupor or loss of consciousness. The issue was whether the evidence established “physical injury or impairment.” In dismissing the indictment, the court considered the various factors listed in People v. Chiddick, 8 NY3d 445, 447-448 (2007), concerning the evidence required to establish whether the victim experienced substantial pain and sustained physical injury. In doing so, that court determined that the victim’s testimony that the defendant squeezed his throat for about three seconds, and that it was painful and “tingly” did not establish that the victim sustained a physical injury within the meaning of Penal Law §10.00(9). Therefore, the evidence was not legally sufficient to establish a prima facie case under Penal Law §121.12. The use of a comma separates a series of words, phrases, or items in a list. Additionally, in construing a statute, the placement of a comma before the disjunctive “or” indicates an intent to discriminate between the various parts of the sentence (McKinney’s Cons Laws, Book 1, Statutes §253). Moreover, in the appropriate context, the use of “or” in a statute may be construed as interchangeable (McKinney’s Cons Laws, Book 1, Statutes §365). The application of proper comma usage to the sentence structure of Penal Law §121.12 indicates that the statute intended to list only three types of resulting harm from the commission of Penal Law §121.11, to elevate the misdemeanor to a felony under Penal Law §121.12. The presence of the comma before “or any other physical injury or impairment” distinguishes the element “loss of consciousness” from “physical injury or impairment.” By that same statutory construction analysis, the absence of the comma between “physical injury or impairment” indicates that those terms are merely interchangeable. This reading of Penal Law §121.12 is consistent with the appellate courts examining the “physical injury or impairment” as only one element by pointing to Penal Law §10.00(9). This reading is also consistent with the definition of “physical injury,” which means “impairment of physical condition or substantial pain” (Penal Law §10.00 [9]). Given that New York appellate courts have only pointed to Penal Law §10.00(9) when interpreting the “physical injury or impairment” element of Penal Law §121.12, there is no authority for this Court to rely on the dictionary or medical definitions of “impairment.” Nor is there any support for this Court to consider whether impeding “the ability of such other person to breathe or restricts blood circulation” under Conn. Gen. State §53a-64bb qualifies as “impairment” under Penal Law §121.12, rather than the required statutory element “physical injury or impairment.” The People do not contend that the results under Conn. Gen. State §53a-64bb qualifies as “physical injury or impairment” as defined under Penal Law §10.00 (9). The People have, therefore, failed to demonstrate that the elements of Conn. Gen. State §53a-64bb are equivalent to the elements of Penal Law §121.12, and that Conn. Gen. State §53a-64bb qualifies as a felony offense under New York law. Accordingly, this Court finds that the defendant’s Connecticut conviction does not constitute a predicate felony offense in New York. This constitutes the Decision and Order of the Court. Dated: April 19, 2024
