| People v Mitchell |
| 2015 NY Slip Op 09306 |
| Decided on December 16, 2015 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on December 16, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.
2013-00769
(Ind. No. 6059/10)
v
Thomas Mitchell, appellant.
Lynn W. L. Fahey, New York, NY (Erica Horwitz of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and Joyce Adolfsen of counsel; Amanda Regan on the brief), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mondo, J.), rendered October 12, 2011, convicting him of course of sexual conduct against a child in the first degree and endangering the welfare of a child, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the defendant's adjudication as a second felony offender and the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
The defendant's contention that he was improperly sentenced as a second felony offender is unpreserved for appellate review, inasmuch as the defendant did not contest his adjudication as a second felony offender in the Supreme Court (see People v Samms, 95 NY2d 52, 57; People v Taylor, 132 AD3d 915). Nonetheless, it is appropriate in this case that we exercise our interest of justice jurisdiction to review that contention (see CPL 470.15[3][c]; People v Iliff, 96 AD3d 974, 975). As the People correctly concede, the defendant's conviction of bank burglary under 18 USC § 2113(a) is not a "predicate felony conviction" (Penal Law § 70.06[1][a], [b]), because the statutory elements of bank burglary are not "equivalent to those of a New York felony" (People v Gonzalez, 61 NY2d 586, 589; see Penal Law § 70.06[1]). In essence, to be punishable as a burglary in New York, a person's entry into a building must be "unlawful[ ]" (Penal Law §§ 140.20, 140.25), which means "not licensed or privileged" (Penal Law § 140.00[5]). New York law expressly provides that, except under certain circumstances, "[a] person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege" (Penal Law § 140.00[5]). By contrast, a person may be convicted of bank burglary under 18 USC § 2113(a) for an entry that would not be unlawful under New York law (compare 18 USC § 2113[a] with Penal Law §§ 140.00[5]; 140.20, 140.25). Inasmuch as the defendant's conviction of bank burglary was not a predicate felony conviction (see Penal Law § 70.06[1][a], [b]), the defendant was improperly sentenced as a second felony offender. Accordingly, in the exercise of our interest of justice jurisdiction, we modify the judgment by vacating the defendant's adjudication as a second felony offender and the sentence imposed, and [*2]remit the matter to the Supreme Court, Kings County, so the defendant may be resentenced as a first-time felony offender (see People v Iliff, 96 AD3d at 976; People v Horvath, 81 AD3d 850, 852).
BALKIN, J.P., AUSTIN, MILLER and HINDS-RADIX, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court