| People v De Aga |
| 2010 NY Slip Op 05261 [74 AD3d 552] |
| June 15, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kinanchy De Aga, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Charlotte E. Fishman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered July 14, 2008,convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon inthe second degree, and sentencing him, as a second violent felony offender, to a term of fiveyears, unanimously reversed, as a matter of discretion in the interest of justice, the plea vacated,and the matter remanded for further proceedings. Appeal from order, same court and Justice,entered on or about July 21, 2009, which denied defendant's CPL 440.20 motion to set aside hissentence, unanimously dismissed as moot.
The record is clear that defendant was improperly adjudicated a second violent felonyoffender, based on a New Jersey conviction of aggravated assault (NJ Stat Ann § 2C:12-1[b] [2]) that does not qualify as a New York felony, whether violent or otherwise. The statuteencompasses conduct that would not be a felony in New York (see generally People vGonzalez, 61 NY2d 586 [1984]), since it can be committed through nonintentional conduct(cf. People v Muslim, 23AD3d 319 [2005], lv denied 7 NY3d 760 [2006] [similar paragraph of same statutenot a New York felony]), and also because its definition of "bodily injury" is broader than"physical injury," as defined in Penal Law § 10.00 (9). Defendant's New Jersey indictmentdoes not establish that he committed a New York felony, and while the New Jersey complaintprovides more information, it was superseded by the indictment and therefore may not be used toresolve this issue (see People v Yancy, 86 NY2d 239, 246-247 [1995]).
Although defendant failed to preserve this claim (see CPL 400.15 [3]; People vSmith, 73 NY2d 961 [1989]; People v Kelly, 65 AD3d 886 [2009], lv denied 13 NY3d860 [2009]), we reach the issue in the interest of justice. Misinformation as to defendant's statusimpacted plea negotiations. The parties were under the misapprehension that defendant wasreceiving the most lenient disposition permitted by law. Furthermore, whether defendant was afirst felony offender or a second violent felony offender made a dramatic difference in theminimum sentence upon a conviction after trial for the original charge of completedsecond-degree weapon possession. These misapprehensions may have affected the People's[*2]offer, as well as defendant's decision to accept it.
Accordingly, we vacate the plea. Concur—Mazzarelli, J.P., Moskowitz, DeGrasse,Abdus-Salaam and Manzanet-Daniels, JJ.