People v. Robinson

115 A.D.2d 1012, 497 N.Y.S.2d 575, 1985 N.Y. App. Div. LEXIS 55417

Opinion

Judgment unanimously modified, on the law, by vacating the sentence imposed and, as modified, affirmed and defendant remanded to Onondaga County Court for resentencing. Memorandum: Defendant was sentenced as a second felony offender based on his prior Federal conviction of the felony of making false statements in an application for a loan from a Federal credit union in violation of 18 USC § 1014. Defendant’s conviction in Federal court does not qualify as a predicate felony since the elements of the Federal crime do not constitute a felony under the laws of New York State (see, People v Gonzalez, 61 NY2d 586, 589; People v Olah, 300 NY 96; People v Gipson, 109 AD2d 1101).

The elements of the Federal crime consist of knowingly making a false statement or report "for the purpose of influencing in any way the action of * * * a Federal credit union * * * upon any application * * * or loan”. (18 USC § 1014, emphasis added.) The most comparable felony under New York law is offering a false instrument for filing in the first degree, and the elements of that crime are: offering a false instrument for filing with the records of a public office knowing that it contains a false statement, "with intent to defraud the state or any political subdivision thereof’ (Penal Law § 175.35, emphasis added). As pointed out in Williams v United States (458 US 279, 287, n 8), the Federal crime (unlike the State crime) does not require an intent to defraud, but an intent only to influence. Moreover, it cannot be said that a Federal credit union is equivalent to the State or any political subdivision thereof or that loan applications filed with a Federal credit union are part of the records of a public office.

Even though the issue was not raised before the sentencing court, because the sentence is illegal, it is reviewable as a matter of law (see, People v David, 65 NY2d 809; People v Fuller, 57 NY2d 152, 156). (Appeal from judgment of Onondaga County Court, Burke, J.—robbery, first degree.) Present —Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.