| People v Poullard |
| 2018 NY Slip Op 01940 [159 AD3d 924] |
| March 21, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Yves Poullard, Appellant. |
Paul Skip Laisure, New York, NY (Brian D. Kreykes and Yvonne Shivers of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Ellen C. Abbot, and Matthew Luongo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (JoelBlumenfeld, J.), rendered July 9, 2015, convicting him of robbery in the first degree, robbery inthe second degree, criminal possession of stolen property in the fifth degree, and criminalpossession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byvacating the adjudication of the defendant as a second felony offender and the sentence imposedthereon; as so modified, the judgment is affirmed, and the matter is remitted to the SupremeCourt, Queens County, for resentencing in accordance herewith.
The defendant failed to preserve for appellate review his contention that he was deprived of afair trial due to improper remarks made by the Supreme Court to prospective jurors during voirdire (see CPL 470.05 [2]; Peoplev Dudley, 151 AD3d 878, 879 [2017]; People v Mason, 132 AD3d 777, 779 [2015]). Contrary to thedefendant's contention, the court's error did not constitute a mode of proceedings error exemptinghim from the rules of preservation (seePeople v Brown, 7 NY3d 880 [2006]; People v Dudley, 151 AD3d at 879;People v Mason, 132 AD3d at 779; People v Cunningham, 119 AD3d 601, 602 [2014]). In any event,the court's remarks to the prospective jurors, while inappropriate, do not warrant reversal (seePeople v Dudley, 151 AD3d at 879; People v Mason, 132 AD3d at 779; People v Bailey, 66 AD3d 491[2009]; People v Daniel, 37 AD3d731 [2007]; People v Alston, 225 AD2d 453 [1996]).
The defendant's contention that his conviction of credit card fraud in Virginia did not qualifyas a predicate New York felony pursuant to Penal Law § 70.06 (1) (b) (i) isunpreserved for appellate review (see People v Samms, 95 NY2d 52, 57 [2000];People v Smith, 73 NY2d 961 [1989]; People v Taylor, 132 AD3d 915 [2015]). However, we exercise ourinterest of justice jurisdiction to review the issue (see People v Rovinsky, 135 AD3d 969, 970 [2016]; People v Ballinger, 99 AD3d 931[2012]; People v Casey, 82 AD3d1005 [2011]). Here, "the People failed to satisfy their burden of establishing that defendantwas convicted of an offense in a foreign jurisdiction that is equivalent to a felony in New York"(People v Yancy, 86 NY2d 239, 247 [1995]; see People v Muniz, 74 NY2d 464[1989]; Matter of Luis C., 124AD3d 109 [2014]). Accordingly, we vacate the adjudication of the defendant as a secondfelony offender and the [*2]sentence imposed thereon, and remitthe matter to the Supreme Court, Queens County, for resentencing. Mastro, J.P., Cohen, LaSalleand Brathwaite Nelson, JJ., concur.