| People v Casey |
| 2011 NY Slip Op 02028 [82 AD3d 1005] |
| March 15, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Casey, 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 (DiMango,J.), rendered December 12, 2008, convicting him of burglary in the third degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, by vacating the defendant's adjudication as a second felony offender and the sentenceimposed; as so modified, the judgment is affirmed, and the matter is remitted to the SupremeCourt, Kings County, for resentencing in accordance herewith.
The defendant's contention that his conviction of burglary in the third degree in the state ofNew Jersey did not qualify as a predicate New York felony pursuant to Penal Law § 70.06(1) (b) (i) is unpreserved for appellate review (see People v Samms, 95 NY2d 52, 57[2000]). However, we reach this issue in the exercise of our interest of justice jurisdiction (see People v Boston, 79 AD3d1140 [2010]; People v Grigg,73 AD3d 806 [2010]; People v Burgos, 97 AD2d 826 [1983]). As the Peoplecorrectly concede, the out-of-state crime of which the defendant was convicted would notconstitute a felony in New York for the purposes of enhanced sentencing (see People vMuniz, 74 NY2d 464, 469 [1989]; NJ Stat Ann § 2C:18-2).
Accordingly, the defendant's adjudication as a second felony offender and the sentenceimposed must be vacated, and the matter must be remitted to the Supreme Court, Kings County,so that the defendant may be resentenced as a first-time felony offender (see Penal Law§§ 140.20, 70.00 [2] [d]; [3] [b]; People v Cochran, 10 AD3d 563 [2004]).
In light of our determination, we need not reach the defendant's remaining contention (seePeople v Burgos, 97 AD2d at 827-828). Angiolillo, J.P., Florio, Belen and Austin, JJ.,concur.