Opinion
December 20, 1985
Appeal from the Onondaga County Court, Burke, J.
Present — Doerr, J.P., Boomer, Green, O'Donnell and Schnepp, JJ.
Judgment unanimously modified, on the law, by vacating the sentence imposed and, as modified, affirmed and defendant remanded to Onondaga County Court for resentencing. Memorandum: Defendant was sentenced as a second felony offender based on his prior Federal conviction of the felony of making false statements in an application for a loan from a Federal credit union in violation of 18 U.S.C. § 1014. Defendant's conviction in Federal court does not qualify as a predicate felony since the elements of the Federal crime do not constitute a felony under the laws of New York State (see, People v Gonzalez, 61 N.Y.2d 586, 589; People v Olah, 300 N.Y. 96; People v Gipson, 109 A.D.2d 1101).
The elements of the Federal crime consist of knowingly making a false statement or report "for the purpose of influencing in any way the action of * * * a Federal credit union * * * upon any application * * * or loan". ( 18 U.S.C. § 1014, emphasis added.) The most comparable felony under New York law is offering a false instrument for filing in the first degree, and the elements of that crime are: offering a false instrument for filing with the records of a public office knowing that it contains a false statement, "with intent to defraud the state or any political subdivision thereof" (Penal Law § 175.35, emphasis added). As pointed out in Williams v United States ( 458 U.S. 279, 287, n 8), the Federal crime (unlike the State crime) does not require an intent to defraud, but an intent only to influence. Moreover, it cannot be said that a Federal credit union is equivalent to the State or any political subdivision thereof or that loan applications filed with a Federal credit union are part of the records of a public office.
Even though the issue was not raised before the sentencing court, because the sentence is illegal, it is reviewable as a matter of law (see, People v David, 65 N.Y.2d 809; People v Fuller, 57 N.Y.2d 152, 156).