| People v Ballinger |
| 2012 NY Slip Op 06969 [99 AD3d 931] |
| October 17, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AaronBallinger, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M. Lieberman,and Adam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.),rendered May 7, 2009, convicting him of murder in the second degree and criminal possession ofa weapon in the second degree (two counts), after a nonjury trial, and imposing sentence uponhim as a second violent felony offender.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byvacating the sentence imposed and the adjudication of the defendant as a second violent felonyoffender; 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 waiver of the right to a jury trial was inadequate isunpreserved for appellate review (see CPL 470.05 [2]; People v Torres, 24 AD3d 692,692 [2005]). In any event, the record establishes that the defendant's waiver was knowing,intelligent, and voluntary (see People v Torres, 24 AD3d at 692; People v Hinton, 6 AD3d 724, 724[2004]; People v Solouzo, 235 AD2d 439, 439 [1997]).
The defendant failed to preserve for appellate review his contention that his conviction ofburglary in the third degree in the State of Connecticut did not qualify as a predicate New Yorkfelony pursuant to Penal Law § 70.06 (1) (b) (i) (see People v Samms, 95 NY2d52, 57 [2000]; People v Casey, 82AD3d 1005, 1005 [2011]). However, we reach this issue in the exercise of our interest ofjustice jurisdiction (see People v Casey, 82 AD3d at 1005; People v Boston, 79 AD3d 1140,1140 [2010]; People v Burgos, 97 AD2d 826 [1983]). As the People correctly concede,the out-of-state crime of which the defendant was convicted would not constitute a felony in NewYork for the purposes of enhanced sentencing (see People v Muniz, 74 NY2d 464,467-468 [1989]; Penal Law § 140.20; Conn Gen Stat § 53a-103; cf. People v Cardona, 9 AD3d 337[2004]; People v Schaner, 133 AD2d 582 [1987]; People v White, 96 AD2d 541,541-542 [1983]).
Accordingly, the defendant's adjudication as a second violent felony offender and thesentence imposed on his conviction of two counts of criminal possession of a weapon in thesecond degree must be vacated. Moreover, since it is not clear from the record whether thesentence [*2]imposed in connection with the defendant'sconviction of murder in the second degree was affected by the Supreme Court's mistaken beliefthat the defendant had previously been convicted of a violent felony, that sentence must also bevacated, and the matter remitted to the Supreme Court, Kings County, for resentencing on allcounts (see People v Torres, 145 AD2d 665 [1988]).
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., Dickerson, Belen and Miller, JJ.,concur.