48 A.D.2d at 60. Curiously, counsel for defendant Ortiz in the case at bar, while discussing Gill, does not discuss People v. Parker, 49 A.D.2d 657 (3rd Dept. 1975), rev'd, 41 N.Y.2d 21 (1976). InParker, defendant pled guilty to the crime of Manslaughter in the First Degree.
Appeal following remittitur from the Court of Appeals (People v Parker, 41 N.Y.2d 21) from a judgment of the County Court of Ulster County, rendered October 30, 1974, convicting defendant, upon her plea of guilty, of the crime of manslaughter in the first degree and sentencing her, as a second felony offender, to a maximum term of imprisonment of 12 years and a minimum term of six years. In accordance with the direction of the Court of Appeals, we have examined the record concerning defendant's other assertions which we did not reach when the case was previously before us (People v Parker, 49 A.D.2d 657). There the defendant contended that the court had given her misleading and inaccurate information and had failed to adequately inform her as to her rights. We disagree and find these assertions unsupported in the record.
In the case of People v Morton ( 48 A.D.2d 58) this court held that section 70.06 Penal of the Penal Law as it related to out of State convictions was unconstitutional. (See, also, People v Parker, 49 A.D.2d 657.) The Court of Appeals, however, has recently reversed the People v Parker case ( 41 N.Y.2d 21) and declared that section 70.06 Penal of the Penal Law is constitutional.
On this appeal the defendant urges a reversal of the conviction on several grounds, and maintains that the sentence imposed was improper. As conceded by the People, the statute under which the defendant was sentenced as a second felony offender having been declared unconstitutional, he must be resentenced as a first felony offender (People v Parker, 49 A.D.2d 657; People v Morton, 48 A.D.2d 58). As to the alleged error on the part of the trial court in the admission of testimony of an accomplice, the record discloses that such testimony was properly received in rebuttal of the defendant's testimony, and was amply corroborated by other evidence tending to connect the defendant with the commission of the crime charged. Nor did the court err in refusing to charge a lesser included offense, as requested, when, as here, there is no reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater (CPL 300.50, subd 1; People v Hubbard, 48 A.D.2d 941).
A statute so written violates sections 1 and 16 of article III of our State Constitution and the Equal Protection Clauses of our Federal and State Constitutions. (Cf. People v Parker, 49 A.D.2d 657; People v Downes, 49 A.D.2d 1038.) In such connection, it is worthy of note that our Legislature recently amended section 70.06 Penal of the Penal Law so as to now require, before second felony treatment may be imposed, misconduct in a foreign jurisdiction sufficient to authorize a sentence exceeding one year or death "in this state."
Appeal from a judgment of the County Court of St. Lawrence County, rendered January 13, 1975, convicting defendant, upon his plea of guilty, of the crime of attempted burglary in the third degree and sentencing defendant to a sentence of imprisonment with a minimum term of one and one-half years and a maximum term of three years. The prior felony for which defendant was convicted, and which serves as the predicate felony for his second felony offender classification, was committed in the State of Florida. Under section 70.06 Penal of the Penal Law, a sentence in such a case is made to depend upon the authorized sentence in the foreign jurisdiction, and we have held such portion of the statute to be unconstitutional in People v Morton ( 48 A.D.2d 58) and People v Parker ( 49 A.D.2d 657, but see L 1975, ch 784, ยง 1). Respondent's contention that Morton is inapplicable where the crime for which the defendant was convicted in the foreign jurisdiction is defined as a felony under the law of New York was rejected in Parker. Therefore, the judgment must be reversed and the matter remitted for resentencing of the defendant as a first-felony offender.