Opinion
2016–03906 S.C.I. No. 85/16
06-19-2019
The PEOPLE, etc., Respondent, v. Luis VASQUEZ, Appellant.
Paul Skip Laisure, New York, N.Y. (Alice R.B. Cullina of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Danielle M. O'Boyle of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Alice R.B. Cullina of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Danielle M. O'Boyle of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Queens County (Gia Morris, J., at plea; Stephanie Zaro, J., at sentence), rendered March 8, 2016, convicting him of attempted burglary in the third degree, upon his plea of guilty, and imposing sentence upon his adjudication as a second felony offender.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the defendant's adjudication as a second felony offender and the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.
The defendant contends that his adjudication as a second felony offender was illegal because the predicate Florida offense was not a felony under New York law. Although the issue is unpreserved for appellate review (see CPL 470.05[2] ; People v. Smith, 73 N.Y.2d 961, 962–963, 540 N.Y.S.2d 987, 538 N.E.2d 339 ), we reach it in the exercise of our interest of justice jurisdiction (see People v. Salako, 165 A.D.3d 846, 847, 86 N.Y.S.3d 93 ; People v. Rovinsky, 135 A.D.3d 969, 970, 22 N.Y.S.3d 910 ; People v. Durant, 121 A.D.3d 709, 710, 993 N.Y.S.2d 183 ; People v. Iliff, 96 A.D.3d 974, 975, 946 N.Y.S.2d 626 ; People v. Boston, 79 A.D.3d 1140, 1140, 913 N.Y.S.2d 344 )." Penal Law § 70.06 requires the imposition of enhanced sentences for those found to be predicate felons" ( People v. Muniz, 74 N.Y.2d 464, 467, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ). An out-of-state felony conviction qualifies as a predicate felony under Penal Law § 70.06 only if it is for a crime whose elements are equivalent to those of a felony in New York (see People v. Yusuf, 19 N.Y.3d 314, 321, 947 N.Y.S.2d 399, 970 N.E.2d 422 ; People v. Muniz, 74 N.Y.2d at 467, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ; People v. Boston, 79 A.D.3d 1140, 913 N.Y.S.2d 344 ). Here, the defendant's Florida burglary conviction did not constitute a felony in New York for the purpose of enhanced sentencing and thus, the defendant should not have been adjudicated a second felony offender on the basis of that conviction (see People v. Boston, 79 A.D.3d at 1141, 913 N.Y.S.2d 344 ; see also Penal Law §§ 70.06[1][b][i], 140.20 ; Fla Stat Ann § 810.02 ; People v. Muniz, 74 N.Y.2d at 469, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ).
In light of our determination, we need not reach the defendant's remaining contention.
SCHEINKMAN, P.J., RIVERA, COHEN and HINDS–RADIX, JJ., concur.