People v. Johnson

127 A.D.2d 1003, 513 N.Y.S.2d 60, 1987 N.Y. App. Div. LEXIS 43506

Opinion

Order unanimously reversed on the law, motion granted and defendant remanded to Supreme Court, Erie County, for resentencing. Memorandum: On this appeal from denial of his motion pursuant to CPL 440.20, defendant challenges his sentencing as a second felony offender on the basis of a prior New Jersey conviction of promoting prostitution. Defendant contends that the out-of-State conviction was not one for which a term of imprisonment in excess of one year was authorized in this State (Penal Law § 70.06). We agree. The sparse record before us contains neither a transcript of the second felony offender hearing nor the basis for the court’s determination that defendant is a predicate felon. According to defendant’s New Jersey certificate of conviction, he was convicted pursuant to New Jersey Statutes Annotated § 2C:34-1 (b) (4) of knowingly promoting prostitution by soliciting a person to patronize a prostitute. The equivalent New York offense is the class A misdemeanor of promoting prostitution in the fourth degree (Penal Law § 230.20). Since the equivalent New York crime is not one for which a sentence of more than one year is authorized (Penal Law § 70.15), the New Jersey conviction cannot furnish the predicate for sentencing defendant as a second felony offender (Penal Law § 70.06; People v Gonzalez, 61 NY2d 586, 589). (Appeal from order of Supreme Court, Erie County, Marshall, J. — motion to vacate.) Present — Denman, J. P., Boomer, Balio, Lawton and Davis, JJ.