| People v Robles |
| 2014 NY Slip Op 01420 [115 AD3d 420] |
| March 4, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Luis Robles, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), forrespondent.
Judgments, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered December2, 2004, convicting defendant, upon his pleas of guilty, of two counts of attemptedcriminal sale of a controlled substance in the fifth degree, and sentencing him, as asecond felony offender, to concurrent terms of 1½ to 3 years, and order, same courtand Justice, entered on or about March 7, 2007, which denied defendant's CPL 440.20motion to set aside the sentences, unanimously affirmed.
Initially, we reject the People's argument that this appeal has been rendered moot bythe fact that defendant has completed his entire sentence. Defendant is not challengingthe length of his sentence. Instead, he is challenging the use of his federal conviction as apredicate felony. Such a determination has potential consequences (see CPL400.21 [8] [subsequent use of finding]).
The court properly sentenced defendant as a second felony offender because his priorfederal conviction under the Hobbs Act (18 USC § 1951), which criminalizes theinterference with commerce by robbery or extortion, was the equivalent of a New Yorkfelony (see People v Muniz, 74 NY2d 464 [1989]). Defendant argues that theHobbs Act is broader than the New York extortion statute (Penal Law § 155.30[6]) because the federal statute encompasses the taking of property by threatening todamage property in the future. However, under the New York statute, larceny byextortion may be committed by threatening to damage property at any time, whetherimmediately or in the future (Penal Law § 155.05 [2] [e] [ii]), and we find nothingin [*2]the statutory scheme to compel a conclusion thatonly an immediate threat would suffice. We have considered and rejected defendant'sremaining arguments. Concur—Tom, J.P., Friedman, Acosta, Andrias and Richter,JJ.