| People v Salako |
| 2018 NY Slip Op 06770 [165 AD3d 846] |
| October 10, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Richard Salako, Appellant. |
Paul Skip Laisure, New York, NY (Kendra L. Hutchinson of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Sharon Y. Brodt of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (BarryKron, J.), rendered May 8, 2015, convicting him of attempted robbery in the second degree, uponhis plea of guilty, adjudicating him a second violent felony offender, and thereupon sentencinghim to a determinate term of five years' imprisonment plus five years of postreleasesupervision.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byvacating the defendant's adjudication as a second violent felony offender and the sentenceimposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to theSupreme Court, Queens County, for resentencing in accordance herewith.
The defendant contends that his adjudication as a second violent felony offender was illegalbecause the predicate California offense was not a violent felony under New York law.
Contrary to the People's contention, the defendant's contention that he was illegally sentencedas a second violent felony offender would survive a valid waiver of the right to appeal (see People v Spencer, 149 AD3d983, 983-984 [2017]; People vHelmus, 125 AD3d 884, 884 [2015]; People v DelCarpio, 101 AD3d 746, 746-747 [2012]; People v Iliff, 96 AD3d 974, 975[2012]; People v Maglione, 305 AD2d 426, 426 [2003]). Accordingly, this Court is notbarred from reviewing the defendant's contention, and it is unnecessary for this Court todetermine whether the defendant validly waived his right to appeal. Furthermore, although thedefendant failed to preserve this contention for appellate review (see People v Smith, 73NY2d 961, 962-963 [1989]; People vPoullard, 159 AD3d 924, 925 [2018]), we reach this issue in the exercise of our interestof justice jurisdiction (see e.g. People vFlores, 143 AD3d 840, 840 [2016]; People v Rovinsky, 135 AD3d 969, 970 [2016]; People v Stevens, 114 AD3d 969,970 [2014]; People v Cosme, 99AD3d 940, 941 [2012]; People vBallinger, 99 AD3d 931, 932 [2012]).
Penal Law § 70.04 requires the imposition of enhanced sentences for thosefound to be predicate violent felons (seePeople v Helms, 30 NY3d 259, 263 [2017]). "Subdivision (1) (b) (i) of that sectionprovides, in pertinent part, that a prior out-of-state conviction qualifies as a predicate violentfelony conviction if it involved 'all of the essential elements of any [violent] felony for which asentence to a term of imprisonment in excess of one year . . . was authorized and isauthorized in this [*2]state' " (id. at 263, quotingPenal Law § 70.04 [1] [b] [i]).
In this context, the Court of Appeals has "applied a strict equivalency standard that examinesthe elements of the foreign conviction to determine whether the crime corresponds to a NewYork [violent] felony, usually without reference to the facts giving rise to that conviction" (Matter of North v Board of Examiners ofSex Offenders of State of N.Y., 8 NY3d 745, 750-751 [2007]; see People vHelms, 30 NY3d at 263). "As a general rule, this inquiry is limited to a comparison of thecrimes' elements as they are respectively defined in the foreign and New York penal statutes"(People v Muniz, 74 NY2d 464, 467-468 [1989]). However, "the strict equivalency test[also] allows a reviewing court to examine . . . any foreign statute or case law thatinforms the interpretation of a foreign code breached by the defendant" (People v Helms,30 NY3d at 264-265).
The People have the burden of establishing that the defendant was convicted of an offense ina foreign jurisdiction that is equivalent to a violent felony in New York (see People vYancy, 86 NY2d 239, 247 [1995]). "When a statute-to-statute comparison reveals differencesin the elements such that it is possible to violate the foreign statute without engaging in conductthat is a [violent] felony in New York, the foreign statute may not serve as a predicate" (People v Yusuf, 19 NY3d 314, 321[2012]).
Here, the People failed to satisfy their burden of establishing that the defendant wasconvicted of an offense in a foreign jurisdiction that is equivalent to a violent felony in NewYork (see People v Yancy, 86 NY2d at 247; People v Poullard, 159 AD3d at 925;People v Durant, 121 AD3d709, 710 [2014]; People v Stevens, 114 AD3d at 970; People v Iliff, 96AD3d at 975-976; People v Cosme, 99 AD3d at 941). The People failed to demonstratethat the California offense of robbery in the first degree (see California Penal Code§§ 211, 212.5) is equivalent to a New York criminal offense designated as aviolent felony (see Penal Law § 70.02 [1]). Accordingly, we modify thejudgment by vacating the defendant's adjudication as a second violent felony offender and thesentence imposed thereon, and we remit the matter to the Supreme Court, Queens County, forresentencing (see e.g. People v Durant, 121 AD3d at 709-710; People v Iliff, 96AD3d at 975; People v Johnson, 88AD3d 907, 908 [2011]; People vCasey, 82 AD3d 1005, 1005 [2011]; People v Horvath, 81 AD3d 850, 851 [2011]).
In light of the foregoing, we need not reach the defendant's remaining contention. Dillon,J.P., Balkin, Miller and Connolly, JJ., concur.