Opinion
June 23, 1988
Appeal from the Supreme Court, New York County, Budd Goodman, J.
Defendant contends, and the People concede, that he was improperly adjudicated a persistent violent felon and sentenced as such because his 1972 conviction of armed robbery in Massachusetts cannot serve as a predicate violent felony conviction for the purposes of New York's enhanced sentencing statute. To constitute a predicate violent felony, an out-of-State conviction must be "of an offense * * * which includes all of the essential elements" of such a felony offense in New York (Penal Law § 70.04 [b] [i]; § 70.08 [1]). There is nothing in the Massachusetts statute or indictment to indicate that defendant's conviction of armed robbery in that State would necessarily satisfy New York's Penal Law definition of a violent felony. (See, People v Gonzalez, 61 N.Y.2d 586, 589-591.)
The Massachusetts law under which defendant was convicted requires that the perpetrator be armed with "a dangerous weapon" (Mass. Gen Laws Annot, ch 265, § 17). That term has been defined by the Massachusetts courts to include instruments which may reasonably be perceived as having the "apparent ability to inflict harm" (Commonwealth v Tarrant, 367 Mass. 411, 416, 326 N.E.2d 710, 714; Commonwealth v Nicholson, 20 Mass. App. 9, 477 N.E.2d 1038, 1044). Under New York law, however, the defendant must either display what appears to be a firearm (Penal Law § 160.10 [b]; § 160.15 [4]), be armed with a "deadly weapon" (Penal Law § 160.15), or use or threaten the immediate use of a "dangerous instrument" (Penal Law § 160.15) in order to be convicted of an analogous violent felony — i.e., robbery in the first or second degree. Under New York law, a "dangerous instrument" is not merely one which appears to be dangerous but one which, in fact, "is readily capable of causing death or other serious physical injury" (Penal Law § 10.00 [emphasis added]).
Although defendant did not raise this issue prior to sentence, we reach it as a matter of discretion and in the interest of justice (People v Tilman, 114 A.D.2d 799 [1st Dept 1985]; People v Love, 111 A.D.2d 134 [1st Dept 1985]). Inasmuch as the Massachusetts armed robbery conviction may not, in these circumstances, be used as a predicate violent felony conviction, we vacate the sentence imposed and remand the matter for resentencing.
Concur — Milonas, J.P., Kassal, Rosenberger, Wallach and Smith, JJ.