People v. Durant

Oct 1, 2014
2012-10932
Versions:121 A.D.3d 709
993 N.Y.S.2d 183
2014 NY Slip Op 06598
2014 N.Y. App. Div. LEXIS 6559

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the defendant‘s adjudication as a second violent felony offender and the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

The defendant claims that his adjudication as a second violent felony offender was illegal because the predicate offense was not a felony under New York law. Although that contention is unpreserved for appellate review (see CPL 470.05 [2]; People v Samms, 95 NY2d 52, 57 [2000]; People v Iliff, 96 AD3d 974 [2012]), we reach it in the exercise of our interest of justice jurisdiction.

As the People correctly concede, the defendant‘s prior conviction of robbery with firearms or other dangerous weapons under North Carolina law does not constitute a predicate violent felony conviction (see NC Gen Stat § 14-87 [a]; Penal Law § 70.04 [1] [b] [i]). Accordingly, we modify the judgment by vacating the defendant‘s adjudication as a second violent felony offender and the sentence imposed thereon, and we remit the matter to the Supreme Court, Kings County, for resentencing (see People v Stevens, 114 AD3d 969 [2014]). Skelos, J.P., Roman, Hinds-Radix and LaSalle, JJ., concur.