| People v Rovinsky |
| 2016 NY Slip Op 00526 [135 AD3d 969] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Rovinsky, Appellant. |
Robert C. Mitchell, Riverhead, NY (Kalina R. Lovell of counsel), for appellant, andappellant pro se.
Thomas J. Spota, District Attorney, Riverhead, NY (Michael J. Brennan of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Toomey, J.), rendered June 21, 2013, convicting him of assault in the first degree andassault in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the adjudication of the defendant as a second felony offender and thesentence imposed thereon; as so modified, the judgment is affirmed, and the matter isremitted to the County Court, Suffolk County, for resentencing in accordanceherewith.
The defendant's contention that his plea was not valid because he had a justificationdefense is unpreserved for appellate review, since he did not move to withdraw his pleaprior to sentencing (see People v Lopez, 71 NY2d 662, 665 [1988]; People vClaudio, 64 NY2d 858, 858-859 [1985]; People v Pellegrino, 60 NY2d 636,637 [1983]). Although the defendant made a motion to vacate the judgment pursuant toCPL article 440, the issues raised in that motion are not properly before this Court on thisdirect appeal from the judgment of conviction, as he was denied leave to appeal from theorder denying that motion (seePeople v Banner, 122 AD3d 641 [2014]; People v DeLuca, 45 AD3d 777 [2007]; People vDaCosta, 217 AD2d 661, 662 [1995]).
The defendant's contention that his conviction of burglary in the third degree in NewJersey 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 vSamms, 95 NY2d 52, 57 [2000]; People v Smith, 73 NY2d 961, 962-963[1989]; People v Taylor,132 AD3d 915 [2015]). However, we exercise our interest of justice jurisdiction toreview the issue (see People vBallinger, 99 AD3d 931, 932 [2012]; People v Casey, 82 AD3d 1005 [2011]; People v Boston, 79 AD3d1140, 1140 [2010]), and we find that the defendant's prior out-of-state convictiondoes not constitute a felony in New York for the purposes of enhanced sentencing(see People v Muniz, 74 NY2d 464, 469 [1989]; People v Casey, 82 AD3d1005 [2011]; People v Wallace, 188 AD2d 499 [1992]). Accordingly, wevacate the adjudication of the defendant as a second felony offender and the sentenceimposed thereon, and we remit the matter to the County Court, Suffolk County, forresentencing.
[*2] In light of ourdetermination, we need not reach the defendant's remaining contentions (see People v Casey, 82 AD3d1005 [2011]; People v Burgos, 97 AD2d 826, 827-828 [1983]). Mastro, J.P.,Hall, Sgroi and Duffy, JJ., concur.