Opinion
October 24, 1989
Appeal from the Supreme Court, New York County (Howard Bell, J.).
Upon this appeal, defendant challenges only his adjudication as a persistent violent felony offender. Defendant contends, and the People concede, that none of the crimes for which defendant was convicted in the State of New Jersey — robbery while armed (NJ Stat Annot §§ 2A:141-1, 2A:151-5 [since repealed]), assault with a dangerous weapon (NJ Stat Annot § 2A:90-3 [since repealed]) and entering (NJ Stat Annot § 2A:94-1 [since repealed]) — is equivalent to a violent felony under the laws of this State (People v Gonzalez, 61 N.Y.2d 586, 589).
Robbery while armed is defined as the forcible taking of property (NJ Stat Annot § 2A:141-1) for which an enhanced punishment is provided when committed while merely in possession of a firearm, whether loaded or unloaded, or other dangerous instrument (NJ Stat Annot § 2A:151-5). Defendant was twice convicted of this crime, first in 1971 and later in 1978. The People concede that upon a review of the accusatory instruments, the crime charged does not involve the actual display of a pistol and therefore does not constitute a violent felony in New York pursuant to Penal Law § 160.10 (People v Tilman, 114 A.D.2d 799).
Assault with a dangerous weapon employs the following statutory language: "Any person who willfully or maliciously assaults another with an offensive weapon or instrument, or by menace, force or violence demands of another any money or personal goods and chattels, with intent to rob such other person, is guilty of a high misdemeanor" (NJ Stat Annot § 2A:90-3 [since repealed]). Defendant was convicted of this crime in 1978. This court has held that the assault with an offensive instrument clause falls short of the requirements of a violent felony under the laws of this State because the essential element of physical injury, or intent to cause physical injury, is lacking (People v Scott, 111 A.D.2d 45). The second clause of the New Jersey statute is equivalent to attempted robbery in the third degree (supra, at 46), which is not a violent offense. Therefore, whatever the basis for defendant's conviction on this charge, it cannot serve as the basis for sentencing as a persistent violent felony offender.
As to the crime of entering (NJ Stat Annot § 2A:94-1 [since repealed]), for which defendant was also convicted in 1978, the People concede that this statute is equivalent to burglary in the third degree (Penal Law § 140.20), a nonviolent felony. While the People point out that defendant did not contest the use of these convictions as predicate violent felonies at trial and, thus, did not preserve the issue for review (People v Smith, 73 N.Y.2d 961), we have nevertheless entertained the appeal in the interests of justice (People v Kilpatrick, 143 A.D.2d 1).
Finally, defendant's contention that, in any event, the convictions may not be considered predicate violent felonies because they were obtained prior to enactment of CPL 400.15 (eff Sept. 1, 1978), providing for violent felony offender status, is without merit. This argument was considered and expressly rejected by the Court of Appeals in People v Morse ( 62 N.Y.2d 205, 216-218).
Concur — Murphy, P.J., Kassal, Rosenberger, Ellerin and Rubin, JJ.