| People v Ramos |
| 2016 NY Slip Op 08103 |
| Decided on December 1, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on December 1, 2016
Tom, J.P., Acosta, Andrias, Moskowitz, Kahn, JJ.
2349 3018/13
v
Edward Ramos, Defendant-Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Alexis E. Kim), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Matthew R. Greenfield of counsel), for respondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered January 14, 2015, convicting defendant, upon his plea of guilty, of auto stripping in the second degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously modified, on the law, to the extent of vacating the second felony offender adjudication and remanding for resentencing, and otherwise affirmed.
Defendant's 2008 drug conviction under a Florida statute (Fla Stat Ann § 893.13[1][a]) that, unlike New York law, contains no element of knowledge that the item at issue was, in fact, the controlled substance the defendant is charged with selling or possessing, did not qualify as a predicate felony conviction. The absence of a scienter element comparable to New York's requirement is clear from both the plain language of the statute and its interpretation by Florida courts (see e.g . Miller v State , 35 So 3d 162, 163 [Fla Dist Ct App 2010]). Moreover, in 2002 Florida enacted a clarifying statute (Fla Stat Ann § 893.101) expressly stating that guilty knowledge is not an element of drug offenses, although lack of such knowledge is an affirmative defense. We have considered and rejected the People's arguments to the contrary, including those that rely on case law that does not reflect the 2002 enactment.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 1, 2016
CLERK