Habitual Felon and Previous Convictions from New Jersey

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I don’t mean to cast aspersions on the Garden State, but it seems like there are a lot of people here in North Carolina with criminal records from New Jersey. Some of those folks are repeat offenders, but an unusual aspect of New Jersey law calls into question the applicability of North Carolina’s habitual felon law to defendants with previous New Jersey convictions.

New Jersey’s Classification of Offenses. The issue arises from the fact that New Jersey’s statutory scheme does not divide crimes into felonies and misdemeanors, as most states do, but rather into “crimes” and “disorderly persons offenses.” N.J. Stat. 2C:1-4. There are four degrees of “crimes” under New Jersey law. N.J. Stat. 2C:43-1 (creating crimes of the first degree, second degree, third degree, and fourth degree). Confusingly, New Jersey sometimes uses the term “misdemeanor” to mean a “crime of the fourth degree” and the term “high misdemeanor” to mean a “crime of the third degree.” N.J. Stat. 2C:43-1. Yet it is clear that even New Jersey’s third- and fourth-degree “crimes” are akin to what we call felonies, not to what we call misdemeanors. Indeed, although N.J. Stat. 2C:1-4 states that “crimes” broadly include offenses punishable by more than six months imprisonment, by statute, defendants convicted of “crimes” face maximum punishments based on the degree of the offense, as follows:

  • First degree: 10 years to 20 years imprisonment (ordinarily), 20 years to life imprisonment (exceptional cases)
  • Second degree: 5 years to 10 years imprisonment (ordinarily), 10 years to 20 years imprisonment (exceptional cases)
  • Third degree: 3 years to 5 years imprisonment (ordinarily); 5 years to 10 years imprisonment (exceptional cases).
  • Fourth degree: up to 18 months imprisonment (ordinarily), 3 years to 5 years imprisonment (exceptional cases).

N.J. Stat. 2C:43-6 (ordinary punishment); N.J. Stat. 2C:43-7 (exceptional punishment).

The New Jersey concept of “disorderly persons offenses,” which carry maximum punishments of 30 days or 6 months of incarceration, depending on the offense, N.J. Stat. 2C:43-8, are similar to what other states call misdemeanors.

New Jersey Isn’t Alone. New Jersey is not completely alone in using a classification other than felonies and misdemeanors. Jones v. State, 23 A.3d 880 (Md. 2011) (“[S]ome states do not employ the ‘felony-misdemeanor’ dichotomy at all. Maine, for instance, classifies crimes in a ‘class’ system, ranking each individual offense as class A, B, C, D, or E. See Me. Rev. Stat. Ann. tit. 17–A, § 4(1) (2006).”). But we don’t seem to have many repeat offenders from Maine in these parts.

North Carolina’s Habitual Felon Statute. Under our habitual felon law, G.S. 14-7.1, a conviction may be used to support a charge of being a habitual felon if the offense of conviction is “defined as an offense which is a felony under the laws of the State or other sovereign” where the conviction took place. This focus on how an offense is classified in the jurisdiction where it occurred differs from, for example, the approach in Structured Sentencing, where either the state or the defendant may prove that an out-of-state offense is substantially similar to a North Carolina offense, in which case, the conviction is classified as it would be under North Carolina law. G.S. 15A-1340.14(e).

Can Convictions from New Jersey Be Used? One could argue that the habitual felon statute applies only to offenses defined as felonies, and that New Jersey does not have any such offenses, so it simply is not possible to use New Jersey convictions to support a habitual felon charge. But barring the use of New Jersey convictions would create a windfall for defendants who happen to have committed their prior crimes in New Jersey, and would undermine the purpose of the habitual felon law. Furthermore, New Jersey courts themselves recognize that New Jersey “crimes” are the functional equivalent of felonies. See, e.g., State v. Doyle, 200 A.2d 606 (N.J. 1964) (“Misdemeanors under the crimes act which are punishable by imprisonment for more than a year in state prison . . . are sufficiently equatable with common law felony to justify arrest by a peace officer without a warrant when he has reasonable ground to believe that an offense of that grade is being or has been committed by the person to be apprehended.”); In re Rettschlag, 2008 WL 1787466 (N.J. Super. Ct. App. Div. Apr. 22, 2008) (unpublished) (prior conviction of fourth degree crime was listed in New Jersey computer system as a “felony” conviction; because that was a barrier to employment, the defendant sought to have it re-described as a “misdemeanor” consistent with New Jersey’s statutory classification scheme; the court rejected the defendant’s argument, stating that “[a] fourth degree crime is punishable by a term of imprisonment not to exceed eighteen months,” and that “[o]ffenses that are punishable by imprisonment for more than one year are considered common law felonies,” so the defendant’s “Criminal History Record accurately designates his fourth degree conviction as equivalent to a common law felony”); Zaborowski v. New Jersey Div. of State Police, 2007 WL 935603 (N.J. Super. Ct. App. Div. Mar. 30, 2007) (unpublished) (similarly recognizing that “our fourth-degree crimes, which are punishable in State prison for a term of up to eighteen months, are equivalent to common law felonies”).

Therefore, convictions for New Jersey “crimes” probably should count as previous convictions under North Carolina’s habitual felon law. Other jurisdictions have recognized that New Jersey crimes are equivalent to felonies. United States v. Brown, 937 F.2d 68 (2nd Cir. 1991) (finding that defendant’s prior New Jersey conviction, though a “high misdemeanor” under the state’s statutory scheme, was a “common-law felon[y]” under New Jersey case law); State v. Gillison, 2009 WL 606230  (Iowa Ct. App. 2009) (unpublished) (describing New Jersey law, noting New Jersey’s own recognition that “crimes” are akin to felonies, and ruling that the defendant’s prior convictions should count as felonies under an Iowa habitual offender statute that applies to defendants who have “twice before been convicted of any felony in a court of this or any other state”).

Procedure. If previous convictions from New Jersey can, in fact, be used to support a habitual felon charge, what must the state do to prove that a defendant’s previous New Jersey conviction is for a felony? In theory, it seems that it would be enough to establish:

  • That the defendant was convicted of crime X in New Jersey, as reflected in the New Jersey judgment;
  • That crime X was classified as a “crime” by New Jersey when the defendant committed it, using the relevant New Jersey statute; and
  • That a “crime” under New Jersey law is the equivalent of a felony, using the case law cited above.

However, in State v. Carpenter, 155 N.C. App. 35 (2002), the court of appeals considered a case in which the state seems to have offered proof along those lines, and found it insufficient because “there was no certification from any official that the two offenses [in question] were felonies in New Jersey.” Id. (citing State v. Lindsey, 118 N.C. App. 549 (1995)). The court did not describe the nature of the needed certification, nor did it elaborate on the type of official from who it should be sought.

Practical Advice. In light of Carpenter, what’s a prosecutor to do? First, when it is possible, a prosecutor may choose to use convictions from somewhere other than New Jersey to support a habitual felon charge. Second, a prosecutor may seek a stipulation from the defendant that his prior New Jersey conviction is a felony. This appears to be permissible under State v. Bohler, 198 N.C. App. 631 (2009) (holding that, while a trial judge may not accept a stipulation that a particular out-of-state offense is substantially similar to a particular North Carolina offense, “it may accept a stipulation that the defendant in question has been convicted of a particular out-of-state offense and that this offense is either a felony or a misdemeanor under the law of that jurisdiction”). Third, a prosecutor may seek to obtain a “certification” from a New Jersey official – perhaps a New Jersey prosecutor – confirming that the defendant’s prior conviction is equivalent to a felony. Finally, a prosecutor might try to distinguish Carpenter by making a more comprehensive exposition of New Jersey’s classification scheme than the state made in that case.

Sorry for the long post, but this has been the subject of many questions over the years so I thought it would be good to lay out everything that I know about the subject.

6 comments on “Habitual Felon and Previous Convictions from New Jersey

  1. Jeff,
    (1) GS 14-7.1 expressly defines a felony as an offense “which is a felony under the laws of the state” of conviction. Unlike GS 15A-1340.14(e), this statute leaves no room for something being the equivalent to a felony. Under the plain language of this statute, the only thing that matters is how the offense is classified in the jurisdiction of conviction. For purposes of this statute, it does not matter how Iowa classifies a New Jersey offense, it does not matter how the feds would classify a New Jersey offense, it does not matter how the common law would classify a New Jersey offense. The only thing that matters is how New Jersey classifies the New Jersey offense. The statute also expressly makes sentence irrelevant, so that State v. Lindsey holds that the Court cannot assume from the fact that defendant received a two-three year sentence [which ipso facto would make the offense a felony at common law] that the prior was a felony in New Jersey
    (2) Your post omits any mention of State v. Moncree, which expressly held that “under the laws of New Jersey, defendant’s conviction in New Jersey was considered a high misdemeanor, not a felony.”
    (3) Moncree expressly rejects your “suggestion” that a prosecutor obtain a stipulation that a defendant’s New Jersey “high misdemeanor” conviction is really a felony conviction. The defendant in Moncree did stipulate, but the Court of Appeals properly recognized that since the offense was not a felony, the stipulation could not make it a felony. Moreover, any defense counsel that entered into, or recommended to a client that he enter into, such a stipulation would be rendering ineffective assistance. Finally, I suspect that any prosecutor who sought such a stipulation, knowing the prior conviction was not, in fact, a felony [unlike the situation in Bohler, where it apparently really was a felony] would be committing a serious ethical violation.
    (4) In light of Moncree, Carpenter and Lindsey, I think it is a pretty well-established point of law that New Jersey prior convictions for “high misdemeanors” simply cannot be used as priors for a North Carolina habitual felon prosecution. The problem is not with the showing the State made in any of these cases. The law simply says what it says. If a prior is not a felony in the state of conviction it is not a felony for purposes of GS 14-7.1.

  2. Dan,
    I appreciate your thoughtful comment. I discuss all three of the cases that you mentioned in my longer paper on the habitual felon laws. (It’s available here, http://www.sog.unc.edu/sites/www.sog.unc.edu/files/aojb0804.pdf, but is getting a little long in the tooth.) None of those cases attempts a detailed discussion of how New Jersey classifies its offenses. Furthermore, none of them says — as the court could easily have done if it subscribed to this point of view — “New Jersey doesn’t have ‘felonies,’ so New Jersey convictions can’t be used as previous convictions for habitual felon purposes.” In fact, the court in Carpenter clearly invites the use of New Jersey priors with its reference to a “certification” from an “official.” So I can’t agree that it is well-established (or even established at all) that New Jersey convictions are off limits. I think the problem is mostly one of how, not whether, the state can use New Jersey convictions. But the how is certainly puzzling, and you’re right that defense lawyers should be on their toes in this area. Thanks again for a very substantive comment.

  3. Jeff,
    Thanks for the response. In your paper, at p. 4 and fn. 5, you seem to agree with my main point, which is just that there is nothing in 14-7.1 that allows for an offense to be treated as “equivalent to a felony” if it is not actually defined as a felony in the state of conviction. In your paper you note the difference in definition of a prior felony in 14-7.1 (HF) from the definition in 14-7.7 (violent HF) in that the latter expressly requires a comparison of out-of-jurisdiction priors to qualifying NC felonies while the former expressly adopts the classification in the state of conviction. I think you got it right in the paper, and I still do not understand why you are now suggesting otherwise.
    I might add that this works both ways. If someone has a conviction in another state that is a felony in the state of conviction but is substantially equivalent to an NC misdemeanor, it is still a felony for purposes of 14-7.1. I was recently involved in such a case where the defendant had a prior felony larceny conviction from another state based on larceny of goods worth more than $250, but less than $1000 — i.e. misdemeanor larceny in NC, but still clearly a felony prior conviction under 14-7.1 because it was defined as a felony in the state of the prior conviction.
    As for the Court of Appeals not saying “New Jersey doesn’t have ‘felonies,'” that would have been beyond the scope of the questions presented in those cases. In Moncree, which is the only one I was involved in and can speak to personally, the issue was whether the particular prior was a felony. The brief cites the New Jersey statute involved and shows that the particular prior is classified as a high misdemeanor in NJ. There was no need for either the defendant or the Court of Appeals to engage in a comprehensive review of NJ law, as you apparently have done here, to see if NJ recognizes other categories of offenses as felonies. Similarly, I think, the Carpenter and Lindsey courts did not need to (and did not in fact) undertake a comprehensive review of NJ law to determine whether it theoretically would be possible for the state to prove any NJ prior (or even the particular priors involved in those case) could be a felony in order to determine that the state had not met its burden of proof in those cases — which was the question directly presented in those appeals.

    Dan

  4. In the paper, I say that you don’t compare the out-of-state previous offense to North Carolina law to see whether the crime would be a felony here, as you do for prior record level purposes and in the violent habitual felon context. What I am saying in this post is that I believe that you can look at the other state’s own laws to see if that state itself recognizes that it has a class of offenses that are felonies by another name. That’s what New Jersey has, as its courts have stated. Thanks again for your comments and for making a better, fuller, and more complete discussion.

  5. Jeff:

    I agree with Dan and want to add one fact.

    Jeff, you wrote in your above blog that:

    1. “New Jersey courts themselves recognize that New Jersey ‘crimes’ are the functional equivalent of felonies. See, e.g., State v. Doyle, 200 A.2d 606 (N.J. 1964)”;

    2. “[C]onvictions for New Jersey ‘crimes’ probably should count as previous convictions under North Carolina’s habitual felon law. Other jurisdictions have recognized that New Jersey crimes are equivalent to felonies. United States v. Brown, 937 F.2d 68 (2nd Cir. 1991) ….”

    The North Carolina Court of Appeals in Carpenter cited Brown and rejected the State’s reliance on that case. Brown also cites to Doyle. Therefore, the N.C. Court of Appeals already considered your two arguments and rejected them.

    I have had two cases on this issue, and the superior court judges in those cases vacated the habitual felon sentences. In one case, the New Jersey prosecutor declined the N.C. prosecutor’s request to issue a certification, and the N.C. prosecutor then consented to the granting of the MAR. In the other case, I do not know whether the N.C. prosecutor sought the certification or not.

  6. I am not a lawyer. I have lived in New Jersey all my life. Anything classified in New Jersey as a crime is considered a felony. Anything classified as a disorderly persons offense is considered a misdemeanor. Crimes (Felonies) are handled in Superior (county) Courts. Disorderly Persons (Misdemeanor) offenses are handled in Municipal (city) Courts.

    If you are convicted of a crime of any degree (first, second, third or fourth degree) in New Jersey, you are considered a convicted felon both by State of New Jersey and the Federal government. For example, if someone is convicted of a 4th degree crime in New Jersey, that person cannot legally possess a firearm unless and until that conviction is expunged. By contrast, a person that has only been convicted of a disorderly persons offense in New Jersey can legally possess firearms because he is not a convicted felon. A 4th degree crime carries a maximum sentence of 18 months in prison; a disorderly persons offense carries a maximum sentence of 6 months in jail.

    I don’t believe New Jersey uses the terms misdemeanors and high misdemeanors any longer.

    New Jersey has some very liberal laws with respect to expunging criminal records, including felony convictions. Once a NJ Superior Court judge signs an expungement order, that conviction is deemed not to have occurred. The offender’s civil rights, including the right to own firearms, is restored at that moment. With only a few exceptions, the offender can state under oath that the arrest and conviction never took place. Please see:

    http://www.njexpungements.com/

    I hope this information is somewhat helpful. Good luck to all.

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