| People v Johnson |
| 2011 NY Slip Op 07449 [88 AD3d 907] |
| October 18, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KeithJohnson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Sharon Y.Brodt of counsel; Lorrie A. Zinno on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered March 30, 2009, convicting him of criminal possession of a weapon in the third degree,upon his plea of guilty, and imposing sentence upon his adjudication as a second felony offender.
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, Queens County, for a hearing to determine whether the defendant's conviction in the Stateof California is sufficient to qualify as a predicate felony in New York and for resentencingthereafter.
The defendant's contention that his conviction of unlawful possession of a firearm in theState of California (see Cal Penal Code § 12021 [a]) did not qualify as a predicateNew York felony pursuant to Penal Law § 70.06 (1) (b) (i) is unpreserved for appellatereview (see People v Samms, 95 NY2d 52, 57 [2000]). However, we reach the issue inthe exercise of our interest of justice jurisdiction (see People v Casey, 82 AD3d 1005 [2011]; People v Horvath, 81 AD3d 850[2011]; People v Boston, 79 AD3d1140 [2010]).
As the People correctly concede on appeal, the California penal statute under which thedefendant was convicted renders criminal not one act but several acts, only some of which, ifcommitted in New York, would constitute a felony (see People v Gonzalez, 61 NY2d586, 590-591 [1984]; People vBoston, 79 AD3d 1140 [2010]; People v Grigg, 73 AD3d 806 [2010]). Accordingly, it would beproper to consider, inter alia, the California accusatory instrument to determine whether theparticular act or acts underlying the defendant's prior conviction would constitute a felony inNew York (see People v Boston, 79 AD3d at 1141; People v Grigg, 73 AD3d at807). Therefore, we remit the matter to the Supreme Court, Queens County, for a hearing todetermine whether the defendant's conviction in the State of California is sufficient to qualify asa predicate felony in New York, and for resentencing thereafter.
In light of our determination, we need not reach the defendant's remaining contention.Rivera, J.P., Florio, Austin and Sgroi, JJ., concur.