| People v Thomas |
| 2010 NY Slip Op 02594 [71 AD3d 1061] |
| March 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Damon Thomas, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.),rendered May 27, 2008, convicting him of robbery in the first degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the law, the defendant's adjudication as apersistent violent felony offender and the sentence imposed are vacated, and the matter isremitted to the Supreme Court, Kings County, for a hearing to determine whether the defendant'sconviction in 1997 for robbery in New Jersey is sufficient to serve as a predicate felony in NewYork and for resentencing thereafter; as so modified, the judgment is affirmed.
The defendant contends that he was deprived of his right to due process, as required byPeople v Rosario (9 NY2d 286 [1961], cert denied 368 US 866 [1961]), by theprosecutor's failure to produce a report of an interview of the complainant by New York CityPolice Detective Daniel Perez and the memo-book entries of the two police officers whotransported the complainant to a showup identification. The defendant's Rosarioobjections were raised for the first time in a motion to set aside the verdict pursuant to CPL330.30 (1). Since the factual assertions concerning this undisclosed material were based onmatter outside of the record, the Supreme Court properly declined to consider them on thedefendant's motion to set aside the verdict pursuant to CPL 330.30 (1) (see People v AiJiang, 62 AD3d 515 [2009]; People v Kronberg, 243 AD2d 132, 135 [1998];People v Leka, 209 AD2d 723 [1994]). Accordingly, the Supreme Court properly deniedthat branch of the defendant's motion pursuant to CPL 330.30 (1) asserting Rosarioviolations (see CPL 330.40 [2] [e] [i]; People v Thomas, 55 AD3d 357 [2008];see also People v Herrington, 194 AD2d 379 [1993]).
The defendant's claims of ineffective assistance of counsel are without merit (see Peoplev Baldi, 54 NY2d 137 [1981]).
While there is no basis to set aside the conviction, the defendant's adjudication as a persistentviolent felony offender and the sentence imposed must be vacated. The People correctly concedethat the defendant's 1986 New Jersey conviction for burglary cannot serve as a predicate violent[*2]felony offense in New York (see People v Muniz, 74NY2d 464, 471 [1989]; compare NJ Stat Ann § 2C:18-1 with New YorkPenal Law § 140.25). The People also correctly concede that it is unclear whether thedefendant's 1997 New Jersey conviction for robbery could serve as a predicate violent felonyoffense for sentencing purposes in New York (compare NJ Stat Ann § 2C:15-1with New York Penal Law § 160.15; see People v Yancy, 86 NY2d 239,246-247 [1995]). Hence, this matter must be remitted to the Supreme Court, Kings County, for ahearing to determine whether the defendant's 1997 New Jersey robbery conviction is sufficient toserve as a predicate violent felony offense, for a new adjudication with respect to whether thedefendant is a persistent violent felony offender, and for resentencing thereafter (see People vFerdinand, 288 AD2d 486 [2001]; People v York, 133 AD2d 130 [1987]).
The defendants' remaining contentions are unpreserved for appellate review and, in anyevent, do not require reversal. Mastro, J.P., Leventhal, Lott and Austin, JJ., concur.