People v. Boston

95 A.D.3d 1349, 944 N.Y.S.2d 898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 2012
• Status: Published

Opinion

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Marras, J.), imposed February 22, 2011, after a hearing, held upon remittitur from this Court (see People v Boston, 79 AD3d 1140 [2010]), upon his conviction of robbery in the third degree and criminal mischief in the fourth degree, upon a jury verdict.

Ordered that the resentence is affirmed.

In accordance with our direction on a prior appeal (see People v Boston, 79 AD3d 1140 [2010]), in determining whether the defendant’s conviction in Florida for robbery constituted a felony under New York law, the Supreme Court properly considered the Florida accusatory instrument charging the defendant with robbery. Since the accusatory instrument alleged that the defendant intended to permanently deprive the complainant of certain property, the defendant’s conviction in Florida for robbery constituted a felony under New York law and, thus, he was properly adjudicated a second felony offender (see Penal Law § 70.06 [1] [b] [i]). Mastro, A.PJ, Florio, Chambers and Roman, JJ., concur.