People v. Breckner

179 A.D.2d 410, 577 N.Y.S.2d 852, 1992 N.Y. App. Div. LEXIS 137

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1992
• Status: Published

Opinion

An examination of the Penal Law does not reveal a New York analog to defendant’s prior Oklahoma felony conviction for "Robbery or attempted robbery with dangerous weapon or imitation firearm”. (Okla Stat, tit 21, § 801; People v Gonzalez, 61 NY2d 586, 589.) Robbery under the Oklahoma Statute (Okla Stat, tit 21, § 791), which provides that a conviction may be proven by the taking of property "from his person or immediate presence,” is broader than and more distinct from our robbery and larceny statutes. (People v Quinlan, 161 AD2d 280.) In addition, larcenous intent is not required under the Oklahoma Statute, as it is for a robbery conviction in New York. (Diaz v State, 728 P2d 503, 508 [Okla].)

Defendant, however, may properly be adjudicated a predicate felon upon resentencing since he was previously convicted of robbery in the first degree in New York. Concur— Murphy, P. J., Carro, Wallach and Asch, JJ.