Opinion
June 9, 1986
Appeal from the Supreme Court, Kings County (Miller, J.).
Judgment modified, on the law, by vacating the defendant's adjudication as a second felony offender and the sentence imposed thereon, and matter remitted to the Supreme Court, Kings County, for resentencing in accordance with Penal Law § 70.00. As so modified, judgment affirmed.
The defendant was found guilty of strangling and fatally beating his wife. He argues that the People failed to prove the element of intent to cause serious physical injury beyond a reasonable doubt, as there was evidence presented at trial that the defendant was intoxicated when he attacked his wife. The evidence on the question of whether the defendant was so intoxicated as to be unable to form the requisite intent presented issues of fact and credibility for the jury to resolve (see, People v. Shapiro, 96 A.D.2d 626). The jury's resolution of the facts will not be disturbed unless clearly against the weight of the evidence (People v. Shakoor, 112 A.D.2d 258). Here the evidence was sufficient to support the defendant's conviction.
The defendant was adjudicated a second felony offender based on a conviction under 21 U.S.C. former § 174 in a Federal District Court for transporting narcotics. As that statute includes acts which are both misdemeanors and felonies under New York law, the defendant was improperly adjudicated a second felony offender (see, People ex rel. Goldman v. Denno, 9 N.Y.2d 138; Penal Law § 70.06 [b] [i]). Lazer, J.P., Brown, Rubin and Eiber, JJ., concur.