Opinion
2018–12419 Ind.No.6729/17
09-02-2020
The PEOPLE, etc., respondent, v. Akeem DYCE, appellant.
Paul Skip Laisure, New York, N.Y. (David P. Greenberg of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (David P. Greenberg of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew Sciarrino, Jr., J.), rendered September 10, 2018, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence upon his adjudication as a second felony offender.
ORDERED that the judgment is modified, on the law, by vacating the defendant's adjudication as a second felony offender and the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
As the People concede, the defendant was improperly adjudicated a second felony offender on the basis of a prior federal conviction for possession of a firearm with an obliterated serial number (see 18 USC § 922 [k] ). "An out-of-state felony conviction qualifies as a predicate felony under Penal Law § 70.06 only if it is for a crime whose elements are equivalent to those of a felony in New York" ( People v. Vasquez, 173 A.D.3d 1073, 1074, 100 N.Y.S.3d 887 ; see People v. Yusuf, 19 N.Y.3d 314, 321, 947 N.Y.S.2d 399, 970 N.E.2d 422 ). Here, the defendant's predicate crime does not require as one of its elements that the firearm be operable (see 18 USC § 922 [k]; United States v. Alston, 112 F.3d 32, 33–34, 38 [1st Cir.] ; see also United States v. Rivera, 415 F.3d 284, 285–286 [2d Cir.] ) and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing (see People v. Longshore, 86 N.Y.2d 851, 852, 633 N.Y.S.2d 475, 657 N.E.2d 496 ; see also People v. Gibson, 141 A.D.3d 1009, 1012–1013, 35 N.Y.S.3d 806 ). Accordingly, we modify the judgment by vacating the defendant's adjudication as a second felony offender and the sentence imposed thereon, and we remit the matter to the Supreme Court, Kings County, for resentencing.
DILLON, J.P., LEVENTHAL, COHEN and HINDS–RADIX, JJ., concur.