People v. Crawford

. Judgment modified by vacating the sentence imposed and, as modified, affirmed, and defendant remanded to Onondaga County Court for resentencing, in accordance with the following memorandum: Upon his conviction of the violent felony offense of burglary in the second degree (Penal Law, § 70.02, subd 1, par [b]) defendant was sentenced on *951February 11,1982 as a persistent violent felony offender. A persistent violent offender is “a person who stands convicted of a violent felony offense * * * after having previously been subjected to two or more predicate violent felony convictions as defined in paragraph (b) of subdivision one of section 70.04”. (Penal Law, § 70.08, subd 1, par [a].) Defendant’s April, 1975 conviction of assault in the second degree and his May, 1978 conviction of attempted burglary in the second degree were used by the sentencing court as the requisite predicate violent felony convictions. A predicate violent felony conviction, where relevant here, must be “of a class A felony * * * of a violent felony offense as defined in subdivision one of section 70.02, or of an offense defined by the penal law in effect prior to September first, nineteen hundred sixty-seven, which includes all of the essential elements of any such felony” (Penal Law, § 70.04, subd 1, par [b], cl [i]). Although section 70.02 (subd 1, pars [b], [c]) of the Penal Law defines assault in the second degree and attempted burglary in the second degree as violent felony offenses, the effective date of this legislation was September 1,1978 (L1978, ch 481). Before this date these crimes were class D felony offenses, not class D violent felony offenses. Defendant’s prior convictions could well be treated as predicate felony convictions (see Penal Law, § 70.06, subd 1) but not as predicate violent felony convictions since a “violent felony offense” did not exist when these judgments were entered. The provisions of the Penal Law must be interpreted “according to the fair import of their terms to promote justice and effect the objects of the law” (Penal Law, § 5.00). Although this rule authorizes “a court to dispense with hypertechnical or strained interpretations of the statute”, it “does not justify the imposition of criminal sanctions for conduct that falls beyond the scope of the Penal Law” (People v Ditta, 52 NY2d 657, 660; see, also, People v Gottlieb, 36 NY2d 629,632). We do not deal here with a clerical or typographical error which would permit us to depart from a literal reading of the statute (see People v Graham, 55 NY2d 144,151). Nor is there any ambiguity in the statute which requires interpretation. The persistent violent felony offender statute simply makes no provision for crimes committed between September 1, 1967 and September 1, 1978. Notwithstanding the broad language of section 5.00 of the Penal Law, the statute must be read and given effect as it is written and we cannot supply missing language by judicial decree (see People v Graham, supra, pp 151-152). As Mr. Chief Justice Burger observed in his concurring opinion in Bifulco v United States (447 US 381, 401-402), “Our compass is not to read a statute to reach what we perceive — or even what we think a reasonable person should perceive — is a ‘sensible result’; Congress must be taken at its word unless we are to assume the role of statute revisers * * * The temptation to exceed our limited judicial role and do what we regard as the more sensible thing is great, but it takes us on a slippery slope.” If there is to be a change in the statute, it should come from the Legislature (see People v Case, 42 NY2d 98, 101). In any event, it is “a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of harsher punishment” (Bell v United States, 349 US 81,83; see, also, Ann., 62 L ed 2d 827). Since the plain, natural meaning of this statute does not prescribe that defendant be sentenced as a persistent violent felony offender, the sentence imposed must be vacated and defendant remanded for resentence in accordance with the law applicable to his case (see People v Hulsen, 85 AD2d 532; People v Manino, 81 AD2d 896). Although it is unnecessary to reach other issues raised by defendant, v/e reject his claim that the persistent violent felony offender law violates the constitutional prohibition against ex post facto laws by enhancing the sentences of crimes committed before its enactment. The persistent violent felony offender statute does not alter the consequences *952attached to crimes upon which a defendant has already been convicted, it merely enhances the sentence to be imposed for crimes committed after its enactment because of those earlier convictions. All concur, except Boomer, J., who dissents and votes to affirm, in the following memorandum.