The defendant was convicted after a jury trial of, inter alia , twenty-two counts of Criminal Contempt in the First Degree. The People filed and served a predicate felony statement based on a 2004 New Jersey conviction for Criminal Sexual Contact, a Fourth Degree Crime, N.J.S.A. § 2C:14-3. The defendant maintains that his conviction in New Jersey does not constitute a felony under the New York statutory scheme. The Court notes that it is the People's responsibility to establish that the defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a felony in New York (People v. Yancy, 86 NY2d 239, 247 [1995]; People v Gonzalez, 61 NY2d 586, 592 [1984]).^[FN1] The Court finds that the People have not met their burden.

The defendant was charged under Hunterdon County indictment No. 98-12-227 with, inter alia, Sexual Assault in the Second Degree, N.J.S.A. § 2C:14-2c(1). On February 10, 2000, the defendant entered a plea of guilty to Criminal Sexual Contact in the Fourth Degree, as a lesser included offense of the original charge of Sexual Assault in the Second Degree.

Penal Law §70.06 requires the imposition of an enhanced sentence for anyone found to be a predicate felon. This section defines a predicate felon as one who has been convicted of a felony in this state or "in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year . . . was authorized and is authorized in this state irrespective of whether such sentence was imposed" (emphasis added).

The first prong of the predicate felon definition requires that the foreign crime committed was punishable by a prison term in excess of one year. Mr. Young pled guilty to NJ § 2C:14-2, Criminal Sexual Contact, which is a crime of the Fourth Degree. Pursuant to New Jersey's criminal sentencing guidelines as defined in NJ Stat. § 2C:43-6, a court may sentence a person convicted of a crime of the fourth degree to a term that shall not exceed 18 months. There is no minimum sentencing period a court must impose for crimes of the fourth degree. Since crimes of [*2]the fourth degree are punishable by a prison sentence in excess of one year, the first prong of the test set out in PL §70.06(1)(b)(i) is satisfied.The second prong of the predicate felon definition requires the foreign crime to be punishable by a prison term in excess of one yearin New York. This requires the court to examine the elements of the foreign statute and compare them to the analogous Penal Law provision because New York only permits terms of imprisonment in excess of one year for felony convictions (People v. Muniz, 74 NY2d 464, 467 [1989]; Gonzalez, 61 NY2d at 589). Where the foreign statute renders several acts as criminal, some of which would constitute felonies in New York and some of which would only constitute misdemeanors, the court is permitted to scrutinize the foreign state accusatory instrument to gather more specific information about the crime committed (People v. Gilchrist, 223 AD2d 382 [1996] [Interpreting Muniz as authorizing examination of the out-of-state accusatory instrument]; Gonzalez, 61 NY2d at 590-92). The accusatory instrument may be gleaned for descriptions of the act or acts underlying the charge to the extent that it clarifies the statutory charge (Muniz, 74 NY2d at 468).

The New Jersey statute at issue (N.J. Stat. § 2C:14-3(b)) provides that an actor is guilty of Criminal Sexual Contact in the Fourth Degree if he commits an act of sexual contact with the victim under any of the circumstances set forth in § 2C:14-2(c)(1) - (4).^[FN2] N.J. Stat. § 2C:14-2 provides that an actor is guilty of Sexual Assault in the Second Degree if he commits an act of sexual penetration with another person under any of the circumstances set forth in § 2C:14-2(c)(1) - (4). Scrutiny of the Hunterdon County indictment shows that the defendant was initially charged with § 2C:14-2(c)(1), Sexual Assault in the Second Degree, and pled guilty to Criminal Sexual Contact in the Fourth Degree as a lesser included offense. Since the defendant was originally charged under § 2C:14-2(c)(1), it inescapably follows that his guilty plea to Sexual Contact in the Fourth Degree corresponds to § 2C:14-2(c)(1) as well. Therefore, this is the foreign statute to which New York law must be compared.

The New York statute most analogous to subsection (1) of New Jersey's Criminal Sexual Contact in the Fourth Degree is PL §130.65(1), Sexual Abuse in the First Degree, which is defined as subjecting another person to sexual contact by forcible compulsion. PL §130.65(1) is a class D felony.

While both statutory schemes prohibit sexual contact by the use of force, they define [*3]"sexual contact" differently.^[FN3] The New Jersey definition permits sexual contact to be carried out to degrade or humiliate the victim or to sexually arouse or sexually gratify the actor, whereas the New York statute permits the act to be carried out only to gratify the sexual desire of the victim or actor. Therefore, the New Jersey statute covers a larger breadth of criminal activity than the New York definition. In such cases, the accusatory instrument cannot be consulted to determine the way in which a particular statutory provision was violated and the court is limited to a comparison of the elements of the two statutes to make its determination (see Gonzalez, 61 NY2d at 591). In Muniz, the portion of the foreign state's Third Degree Burglary statute at issue (N.J. Stat. § 2C:18-2) involved an intent to commit not only a "crime," but also a violation. The analogous New York Third Degree Burglary statute (PL §140.20) also included an intent to commit a "crime." This term refers to only felonies and misdemeanors under New York law, but not violations (see PL §10.00 [6]). Therefore, the culpable conduct in the foreign sister state was broader than the corresponding conduct in New York (Muniz, 74 NY2d at 470). Similarly, because the New Jersey definition of "sexual contact" prohibits broader activity not similarly outlawed as a felony in New York, the two statutes in this case are not equivalent.

Accordingly, the People's request to have the defendant adjudicated a second felony offender and to enhance his sentence based on the prior New Jersey felony is denied.

This shall constitute the Decision and Order of the Court.

E N T E R.

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J.S. C.