People v. Brooks

73 A.D.2d 564, 423 N.Y.S.2d 41, 1979 N.Y. App. Div. LEXIS 14348

Opinion

Judgment, Supreme Court, Bronx County, rendered April 4, 1978, convicting defendant on his plea of guilty to robbery in the first degree and, on adjudicating defendant a predicate felony offender, imposing an indeterminate sentence of 8 to 16 years, modified, on the law, to vacate the sentence and defendant’s adjudication as a predicate felony offender, and the matter remanded for resentence, and otherwise affirmed. Defendant was sentenced as a predicate felon on the basis of a Florida conviction for grand larceny. The Florida statute made it a felony to steal property with a value equal to or exceeding $100 (Fla Stat Ann, § 812.021). In New York, larceny does not constitute a felony punishable by over one year in prison unless the value of the property stolen exceeds $250 (Penal Law, § 155.30, subd 1). In a memorandum decision filed November 1, 1979, this court remanded for a new predicate felony hearing to determine the monetary value of the stolen property in Florida. That memorandum decision was recalled sua sponte on November 8, 1979. Section 70.06 (subd 1, par [b], cl [i]) of the Penal Law defines a predicate felony conviction in pertinent part as a conviction "in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year * * * was authorized and is authorized in this state”. Since the Florida larceny as defined by the Florida statute is not an offense punishable in this State by a term of imprisonment in excess of one year, it does not constitute a predicate felony for purposes of sentencing. (See People v Olah, 300 NY 96.) Accordingly, defendant’s adjudication as a second felony offender must be vacated and the matter remanded for resentencing. Concur—Kupferman, J. P., Fein, Sandler, Markewich and Silverman, JJ.