Opinion
May 7, 1992
Appeal from the Supreme Court, New York County (Daniel Sullivan, J.).
The trial court gave a fair and balanced interested witness charge, making clear to the jury that they could consider whether any witness had an interest in the case (People v. Agosto, 73 N.Y.2d 963, 967), and there was no basis for singling out the police officers as interested witnesses (People v. Rivera, 176 A.D.2d 127, lv denied 78 N.Y.2d 1129).
The People concede that the New Jersey conviction on which defendant's predicate felony status was based is not in fact a felony offense in New York (People v. Gadson, 143 A.D.2d 360). Although defendant did not challenge the prior felony at sentencing, and indeed his counsel appeared to be under the impression that conviction under the relevant statute would constitute a felony in New York, we reach the issue in the interest of justice, and accordingly vacate the sentence and remand for resentencing. Of course, on remand, the People may allege a different prior felony conviction as the basis for predicate felony adjudication.
Concur — Sullivan, J.P., Carro, Wallach and Smith, JJ.