d (see, People ex rel. Gold v Jackson, 5 N.Y.2d 243, 246)" (People v Muniz, supra, at 468). In People v Olah ( 300 N.Y. 96), the defendant had previously been convicted under a New Jersey criminal statute which defined larceny as the theft of money or property in excess of $20. The comparable New York statute set a monetary threshold of $100. Although the New Jersey indictment charged the defendant with the theft of over $200, the Court of Appeals held that it was improper to consider the indictment since the defendant could have been convicted in New Jersey regardless of the amount by which the stolen property exceeded $20. "Once having admitted a theft of at least $20, Olah had no interest in attempting to show that what he stole was valued at less than $200 * * * and it impresses us as unfair now to construe his plea as an admission that he was guilty of a `crime' more broad than that defined in the statute under which he was convicted" (People v Olah, supra, at 100-101; see also, People v Love, 111 A.D.2d 134; People v Augle, 87 A.D.2d 348). In People ex rel. Gold v Jackson ( 5 N.Y.2d 243), on the other hand, the Florida statute under consideration made it a felony (1) to break and enter a building with the intent to commit a felony therein, or (2) to break out of a building having entered with the intent to commit a crime therein.
73 N.Y.2d 961), the Court of Appeals case most nearly on point, it was held that the defendant had failed to preserve the argument that his adjudication as a second felony offender was illegal because the prior felony relied upon by the sentencing court (kidnapping in violation of 18 U.S.C. § 1201) did not constitute a predicate felony within the meaning of Penal Law § 70.06 (1) (b). The Smith case conforms the validity of several more recent cases of this court which hold that such defects may not be reviewed as issues of law in the absence of an objection (e.g., People v. Morales, 143 A.D.2d 949, 950; People v Tantau, 143 A.D.2d 954; People v. Alston, 134 A.D.2d 433, 435; cf., People v. Gadson, 143 A.D.2d 360; People v. Abreu, 114 A.D.2d 853, 854), and apparently overrules earlier precedents which had held that such defects must be reviewed as issues of law, even in the absence of an objection (see, e.g., People v. Santiago, 129 A.D.2d 411; People v. Robinson, 115 A.D.2d 1012, 1013; People v Love, 111 A.D.2d 134; People v. Williams, 100 A.D.2d 760).
Under New York law, a "dangerous instrument" is not merely one which appears to be dangerous but one which, in fact, "is readily capable of causing death or other serious physical injury" (Penal Law § 10.00 [emphasis added]). Although defendant did not raise this issue prior to sentence, we reach it as a matter of discretion and in the interest of justice (People v Tilman, 114 A.D.2d 799 [1st Dept 1985]; People v Love, 111 A.D.2d 134 [1st Dept 1985]). Inasmuch as the Massachusetts armed robbery conviction may not, in these circumstances, be used as a predicate violent felony conviction, we vacate the sentence imposed and remand the matter for resentencing.
Accordingly, the Federal statute cannot be utilized as a predicate felony. (People v Love, 111 A.D.2d 134; People v Williams, 100 A.D.2d 760.) Nor is the court permitted, in these circumstances, to make reference to the indictment in order to determine whether the specific acts attributed to defendant during the commission of the prior felony meet the State's requirements, for "the allegations of the accusatory instrument may be referred to when necessary to clarify the statutory charge, to limit or narrow the basis for the conviction, but they may not be used to enlarge or expand the crime charged." (People v Gonzalez, supra, at 591; see, People v Olah, 300 N.Y. 96, 98.)
Appeal from the Supreme Court, New York County (Shirley R. Levittan, J.). Commendably, the People concede that defendant was improperly adjudicated a second felony offender inasmuch as his 1982 New Jersey conviction of possession of a controlled dangerous substance under New Jersey Statutes Annotated § 24:21-20 (a) (1) does not qualify as a predicate felony in New York. Even though defendant failed to challenge the New Jersey conviction at the time of sentence, he is not precluded from raising the issue on appeal. (People v Tilman, 114 A.D.2d 799; People v Love, 111 A.D.2d 134.) Thus, we modify to vacate the sentence and predicate felony adjudication.
25) or criminal possession of stolen property in the third degree (Penal Law § 165.40, eff until Nov. 1, 1986). Accordingly, the matter must be remanded to the trial court for resentencing (People v. Martin, 81 A.D.2d 765; People v. Brooks, 73 A.D.2d 564; see, People v. Love, 111 A.D.2d 134). We have examined defendant's claim that he was afforded ineffective assistance of counsel at trial and hold it to be without merit.
(See, State v Cooper, 140 N.J. Super. 28, 354 A.2d 713, revd on other grounds 165 N.J. Super. 57, 397 A.2d 702, where this crime was committed with the mere possession but without the display of a weapon.) Thus, an analysis of the elements of the crime, as clarified by the indictment, establish that defendant's New Jersey conviction was not for an offense punishable as a violent felony in New York, as it is possible to violate this New Jersey statute under circumstances which would not constitute a violent felony in New York. (See, People v Love, 111 A.D.2d 134; People v Williams, 100 A.D.2d 760.) Since the requirements for enhanced sentencing have not been met, defendant's sentence as a persistent violent felony offender must be reversed. (People v Gonzalez, supra.)
The nature of the element of "property" is a critical element of the crime in New York, although it is irrelevant under the federal statute, making it readily apparent that the federal statute is not the equivalent of the New York statute. (E.g., People v Love, 111 AD2d 134 [1st Dept 1985]; People v Gipson, 109 AD2d 1101 [4th Dept 1985].) However, the People have requested that, to cure this discrepancy, the federal accusatory instrument be examined since it specifically alleges that the "stolen mail matter" in count two involved a credit card, which would have constituted an equivalent felony in New York.
The nature of the element of "property" is a critical element of the crime in New York, although it is irrelevant under the Federal statute, making it readily apparent that the Federal statute is not the equivalent of the New York statute. (E.g., People v. Love, 111 A.D.2d 134 [1st Dept. 1985]; People v. Gipson, 109 A.D.2d 1101 [4th Dept. 1985]) However, the People have requested that, to cure this discrepancy, the Federal accusatory instrument be examined since it specifically alleges that the "stolen mail matter" in Count Two involved a credit card, which would have constituted an equivalent felony in New York. As a general rule, the inquiry is limited to a comparison of the elements as they are respectively defined under Federal and New York law.
It is readily apparent that it is possible to violate the Federal statute with a person less than 18 years of age, without violating the New York statute. It has been held that where the essential elements of a statute in another jurisdiction do not comport with the New York statute, that conviction may not be used as a predicate for sentencing purposes. (People v Gonzalez, 61 NY2d 586 [1984]; People v Love, 111 AD2d 134 [1st Dept 1985].) The court must compare the foreign and New York statutes; it is the statute upon which the indictment was drawn that defines and measures the crime and the crime cannot be extended by allegations in the indictment or by reference to trial evidence.