| People v Hall |
| 2017 NY Slip Op 03408 [149 AD3d 1610] |
| April 28, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Thomas C.Hall, Appellant. |
Carr Saglimben LLP, Olean (Jay D. Carr of counsel), for defendant-appellant.
Lori Pettit Rieman, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Ronald D. Ploetz, J.), renderedFebruary 1, 2016. The judgment convicted defendant, upon his plea of guilty, of criminalfacilitation in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by vacating the sentence, and as modifiedthe judgment is affirmed, and the matter is remitted to Cattaraugus County Court forresentencing.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of criminalfacilitation in the second degree (Penal Law § 115.05), defendant contends that hewas improperly sentenced as a second felony offender. Defendant failed to preserve thatcontention for our review (see People v Smith, 73 NY2d 961, 962-963 [1989]), but weexercise our power to reach it as a matter of discretion in the interest of justice (see CPL470.15 [3] [c]), and we note that the People correctly concede defendant's point. We thereforemodify the judgment by vacating the sentence, and we remit the matter to County Court forresentencing. It is well settled that, "under New York's 'strict equivalency' standard forconvictions rendered in other jurisdictions, a federal conviction for conspiracy to commit a drugcrime may not serve as a predicate felony for sentencing purposes" (People v Ramos, 19 NY3d 417,418 [2012]). Present—Carni, J.P., Lindley, DeJoseph, Curran and Troutman, JJ.