| People v Grigg |
| 2010 NY Slip Op 03957 [73 AD3d 806] |
| May 4, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Grigg, Appellant. |
—[*1]
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.),rendered September 12, 2007, convicting him of attempted rape in the first degree, upon his pleaof guilty, and imposing sentence upon his adjudication as a predicate felon.
Ordered that the matter is remitted to the Supreme Court, Kings County, for a hearing todetermine whether the defendant's conviction in the State of Florida is sufficient to qualify as apredicate felony in New York pursuant to Penal Law § 70.04 (1) (b) (i) or § 70.06(1) (b) (i), and the appeal is held in abeyance in the interim. The Supreme Court, Kings County,shall file its report with all deliberate speed.
Contrary to the People's contention, the record is insufficient to demonstrate that thedefendant knowingly and voluntarily waived his right to appeal (see People v DeSimone,80 NY2d 273, 283 [1992]; People v Rowe, 277 AD2d 403 [2000]; People vGladden, 267 AD2d 400 [1999]; People v McCaskell, 206 AD2d 547, 548 [1994]).
Although the defendant's contention that his conviction of armed robbery in the State ofFlorida did not qualify as a predicate New York felony is unpreserved for appellate review(see People v Samms, 95 NY2d 52, 57 [2000]), we reach this issue in the exercise of ourinterest of justice jurisdiction. To be used as a predicate for enhanced sentencing in New York,an out-of-state felony conviction must also qualify as a felony or violent felony in New York(see Penal Law § 70.04 [1] [b] [i]; § 70.06 [1] [b] [i]; People vGonzalez, 61 NY2d 586, 588 [1984]; People v Ferdinand, 288 AD2d 486 [2001]).The Florida robbery statute under which the defendant was convicted (see Florida StatAnn, tit 46, § 812.13) criminalizes several different acts, some of which, if committed inNew York, would constitute a felony pursuant to Penal Law § 160.05, or a violent felonypursuant to Penal Law § 160.15, and some of which would not constitute a felony in NewYork. Under these circumstances, it would be appropriate to consider, inter alia, the Floridaaccusatory instrument to determine the particular act or acts underlying the defendant'sconviction in that state to determine whether they are the equivalent of a New York felony orviolent felony (see People v Muniz, 74 NY2d 464, 468 [1989]; People vGonzalez, 61 NY2d 586, 590-591 [1984]; People v Ricketts, 38 AD3d 291, 292 [2007]; People v Gillespie, 35 AD3d 880,881 [2006]; People v Ferdinand, 288 AD2d 486 [2001]; People v [*2]Malanga, 201 AD2d 742 [1994]). Accordingly, the matter mustbe remitted to the Supreme Court, Kings County, for a hearing to determine whether thedefendant's armed robbery conviction in the State of Florida was based upon acts which wouldconstitute a felony or a violent felony in New York, and the appeal must be held in abeyance inthe interim. Skelos, J.P., Eng, Austin and Roman, JJ., concur.