80 A.D.2d 697 | N.Y. App. Div. | 1981
Appeal from a judgment of the County Court of Sullivan County, rendered May 8, 1980, convicting defendant upon his plea of guilty of the crime of attempted robbery in the second degree. The sole issue on this appeal is whether defendant was properly sentenced as a second felony offender based upon his prior conviction, in the State of Maine, of the crime of breaking, entering and larceny, where Maine had no youthful offender statute which defendant, 18 years old at the time, could have taken advantage of. The gist of defendant’s argument seems to be that if the prior crime had been committed in New York, he would have been eligible for youthful offender treatment, and if granted, he could not have been sentenced on the present crime as a second felony offender. Based upon this proposition, defendant concludes that the Maine conviction cannot constitute a predicate felony conviction as defined in section 70.06 (subd 1, par [bl) of the Penal Law. The argument has previously been considered and rejected (People v Sibila, 81 Misc 2d 1028, affd 53 AD2d 809). Defendant contends that since the definition of predicate felony offender was subsequently amended (L 1975, ch 784, § 1) this case is of no precedential value. Prior to the amendment, section 70.06 (subd 1, par [b], cl [il) required that if the previous conviction occurred outside of New York, the authorized sentence for the crime in the other jurisdiction must have been a term of imprisonment in excess of one year. The amendment (L 1975, ch 784, § 1) added the requirement that such a sentence must also have been authorized in this State. Defendant contends that since he might have received youth
