The People have urged the Court to sentence this defendant as a persistent violent felon pursuant to Penal Law § 70.08, relying on two grounds. Defendant was convicted by a jury on May 4, 2011 of Burglary in the First Degree and Rape in the First Degree.^[FN1] His previous criminal record is recited in the CPL Article 400 "Predicate Felony Statement" served and filed by the People.

The first ground relied upon by the prosecution is defendant's conviction in the State of Nevada for Sexual Assault under NRS 200.366. By Order of June 17, 2011, the Court directed both sides to brief the issue of whether this Nevada conviction can properly be treated as a violent felony under New York law.

Defendant has submitted a memorandum arguing that the People have not met their burden of proving that the Nevada conviction qualifies as a violent felony as required by CPL 400.16 and 400.15(7)(a); see also People v Wilson, 82 AD3d 797 (2d Dept 2011), lv denied 16 NY3d 901 (2011); People v Shaw, 83 AD3d 1101 (2d Dept 2011). Defendant maintains that the Nevada statute

in question requires neither force nor fear of force and is broader than its alleged New York counterpart, Rape in the First Degree (Penal Law § 130.35). It is defendant's contention that the [*2]intent of the Nevada statute is to broadly criminalize non-consensual assaults in the same manner, whether or not force is used. Defendant notes that the Nevada statute merely requires sexual penetration "against the will" of the victim and does not require forcible compulsion.^[FN2] Jeffries v State, 2009 WL 1470200 (2009); Lauer v State, 238 P3d 832 (2008); Estes v State, 12 Nev 1123, 1226, 146 P3d 114, 1127-1128 (2007); McNair v State, 108 Nev 53, 825 P2d 571 (1992); Dinkens v State, 92 Nev 74, 77, 546 Nev P2d 228, 230 (1976). Defendant further argues that the Nevada statute does not require fear of physical injury, death or kidnapping or mental disability, mental incapacity or physical helplessness. Defendant therefore concludes this "catchall" lack of consent is more analogous to New York's Rape in the Third Degree statute (Penal Law § 130.35) - a non-violent felony.

Regarding the People's legal analysis of defendant's Nevada conviction as a violent predicate for New York sentencing purposes, it is conceded that the essential element in the New York sexual assault statutes of "forcible compulsion" is missing from the pertinent Nevada statute. Nevertheless, the prosecutor argues that the Nevada element of "against the will of the victim" is consistent with "forcible compulsion" and also that the facts of defendant's conviction in Nevada make out a rape by forcible compulsion.

The People are wrong on both counts, not because defendant did not forcibly rape a victim in Nevada, but because the New York test by statute [Penal Law § 70.04(1)(b)(i) and (ii)] and case law [People v Muniz, 74 NY2d 464 (1989); Matter of North v Board of Examiners, 8 NY3d 745, 650-751 (2007); People v Griggs, 82 AD2d 791 (2d Dept 2011), People v Horvath, 81 AD3d 850 (2d Dept 2011); People v Kelly, 65 AD3d 886 (1st Dept 2009), lv denied 13 NY3d 860 (2009), reconsideration denied 15 NY3d 775 (2010) and Somerville v Conway, 281 F. Supp 2d 515 (EDNY, 2003, Weinstein, J.)] require that the foreign statute must contain all the essential elements of the corresponding New York statute. It does not.^[FN3]

Moreover, the analysis reaches the accusatory instrument in the foreign jurisdiction only if there are different parts of the foreign statute, some of which criminalize conduct which would constitute a felony or violent felony in New York and others which would not. There is no such variation in the Nevada statute in question.

Therefore the Court agrees with defense's position that the Nevada conviction cannot satisfy New York law as a violent felony because the Nevada statute lacks the element of forcible compulsion. See Jeffries v State, supra; Lauer v State, supra; Estes v State, supra; McNair v State, supra; Dinkens v State, supra; People v Muniz, supra. Accordingly, the Nevada conviction fails to qualify as defendant's second violent felony conviction.

The People's second basis for treating defendant as a persistent violent felon are his three [*3]violent felony convictions in Bronx Supreme Court in 1985 and 1986. The prosecution cites People v Morse, 62 NY2d 205 (1985), appeal dismissed sub nom Vega v New York, 469 US 11 86 (1985) and People v Carr, 244 AD2d 264 (1st Dept 1987) [lv denied 91 NY2d 889 (1988)] in support of their reading of the statute (Penal Law § 70.08) that one need not be adjudicated a second violent felon in order to qualify for persistent status. While that is true under the unusual facts of Carr, the prosecutor's argument totally ignores the requirement, enshrined in the statute [see Penal Law § 70.04(b)(ii)] and both of the cases cited above that a defendant must have had sentence imposed in the earlier felony before he commits the subsequent crime. See Morse, supra, at 224-225 and Carr.

Even a cursory review of defendant's prior record shows that his Bronx convictions must be treated as one for violent predicate status. All three of his felonies in Bronx Supreme Court were the subject of 1984 indictments, for which sentences were subsequently imposed in 1985 and 1986. In short, defendant was not sentenced on any of them before he committed the others.

It is therefore the Court's conclusion that defendant can only be sentenced as a second violent felony offender, if that is established at the sentencing proceeding by proof or his admission. To be sure, defendant's Nevada and Bronx convictions must be considered by the Court now as extremely aggravating factors for sentencing purposes, but he is not a persistent violent felony offender under New York law.

IT IS SO ORDERED.

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J.S.C.