Opinion
10-12-2016
The PEOPLE, etc., respondent, v. David FLORES, appellant.
Lynn W.L. Fahey, New York, NY (Leila Hull of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, and Rebecca L. Visgaitis of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Leila Hull of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, and Rebecca L. Visgaitis of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Riviezzo, J.), rendered January 17, 2014, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him, as a second felony offender, to a determinate term of imprisonment of 12 years plus 5 years of postrelease supervision.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
While the defendant's contention that he was improperly adjudicated a second felony offender is unpreserved for appellate review (see CPL 470.05[2] ), we consider the matter in the exercise of our interest of justice jurisdiction (see People v. Smith, 127 A.D.3d 790, 6 N.Y.S.3d 282 ; People v. Feder, 96 A.D.3d 970, 946 N.Y.S.2d 872 ; People v. Favale, 77 A.D.3d 970, 909 N.Y.S.2d 400 ; People v. Hamdam, 58 A.D.3d 752, 871 N.Y.S.2d 708 ). The defendant was sentenced as a predicate felon on the basis of a prior conviction in Pennsylvania for the offense of burglary (see 18 Pa.C.S.A. § 3502 ). However, as correctly conceded by the People, there is no element in the Pennsylvania statute comparable to the element in the analogous New York statute that an intruder “knowingly” enter or remain unlawfully in the premises (Penal Law § 140.20 ). The absence of this scienter requirement from the Pennsylvania burglary statute renders improper the use of the Pennsylvania burglary conviction as the basis of the defendant's predicate felony adjudication (see People v. Schaner, 133 A.D.2d 582, 520 N.Y.S.2d 5 ; see also People v. Gonzalez, 61 N.Y.2d 586, 589, 475 N.Y.S.2d 358, 463 N.E.2d 1210 ; People v. Ballinger, 99 A.D.3d 931, 952 N.Y.S.2d 272 ; People v. White, 96 A.D.2d 541, 465 N.Y.S.2d 46 ).
In light of our determination, we need not reach the defendant's contentions that the sentence imposed was excessive or that he received ineffective assistance of counsel in connection with his sentencing (see People v. Brown, 113 A.D.3d 785, 978 N.Y.S.2d 862 ; People v. Battle, 305 A.D.2d 515, 758 N.Y.S.2d 830 ; People v. Rivera, 203 A.D.2d 393, 612 N.Y.S.2d 904 ; People v. Roman, 153 A.D.2d 594, 544 N.Y.S.2d 384 ; see generally People v. Cotton, 127 A.D.3d 778, 6 N.Y.S.3d 286 ; People v. Wolters, 41 A.D.3d 518, 838 N.Y.S.2d 117 ; People v. Tejada, 289 A.D.2d 516, 735 N.Y.S.2d 588 ).
The defendant's remaining contention, that the Supreme Court erred in excusing potential jurors based upon hardship prior to conducting voir dire, is unpreserved for appellate review (see People v. Rahman, 119 A.D.3d 820, 989 N.Y.S.2d 306 ; People v. Harris, 115 A.D.3d 761, 981 N.Y.S.2d 451 ; People v. Miller, 112 A.D.3d 856, 976 N.Y.S.2d 672 ; People v. Casanova, 62 A.D.3d 88, 875 N.Y.S.2d 31 ; People v. Toussaint, 40 A.D.3d 1017, 837 N.Y.S.2d 218 ) and, in any event, without merit (see People v. King, 27 N.Y.3d 147, 155–157, 31 N.Y.S.3d 402, 50 N.E.3d 869 ; People v. Sloan, 79 N.Y.2d 386, 392, 583 N.Y.S.2d 176, 592 N.E.2d 784 ; People v. Velasco, 77 N.Y.2d 469, 473, 568 N.Y.S.2d 721, 570 N.E.2d 1070 ; People v. Umana, 76 A.D.3d 1111, 908 N.Y.S.2d 244 ; People v. Miles, 58 A.D.3d 872, 873 N.Y.S.2d 125 ; People v. Toussaint, 40 A.D.3d at 1017, 837 N.Y.S.2d 218 ).
DILLON, J.P., MILLER, DUFFY and LaSALLE, JJ., concur.