People v. Casey

82 A.D.3d 1005, 918 N.Y.2d 727

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 2011
• Status: Published

Opinion

The defendant’s contention that his conviction of burglary in the third degree in the state of New Jersey did not qualify as a predicate New York felony pursuant to Penal Law § 70.06 (1) (b) (i) is unpreserved for appellate review (see People v Samms, 95 NY2d 52, 57 [2000]). However, we reach this issue in the exercise of our interest of justice jurisdiction (see People v Boston, 79 AD3d 1140 [2010]; People v Grigg, 73 AD3d 806 [2010]; People v Burgos, 97 AD2d 826 [1983]). As the People correctly concede, the out-of-state crime of which the defendant was convicted would not constitute a felony in New York for the purposes of enhanced sentencing (see People v Muniz, 74 NY2d 464, 469 [1989]; NJ Stat Ann § 2C:18-2).

Accordingly, the defendant’s adjudication as a second felony offender and the sentence imposed must be vacated, and the matter must be remitted to the Supreme Court, Kings County, so that the defendant may be resentenced as a first-time felony offender (see Penal Law §§ 140.20, 70.00 [2] [d]; [3] [b]; People v Cochran, 10 AD3d 563 [2004]).

In light of our determination, we need not reach the defendant’s remaining contention (see People v Burgos, 97 AD2d at 827-828). Angiolillo, J.E, Florio, Belen and Austin, JJ., concur.