Opinion
2015–06659 Ind. No. 1242/13
03-21-2018
The PEOPLE, etc., respondent, v. Yves POULLARD, appellant.
Paul Skip Laisure, New York, N.Y. (Brian D. Kreykes and Yvonne Shivers of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Matthew Luongo of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Brian D. Kreykes and Yvonne Shivers of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Matthew Luongo of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Queens County (Joel Blumenfeld, J.), rendered July 9, 2015, convicting him of robbery in the first degree, robbery in the second degree, criminal possession of stolen property in the fifth degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the adjudication of the defendant 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, Queens County, for resentencing in accordance herewith.
The defendant failed to preserve for appellate review his contention that he was deprived of a fair trial due to improper remarks made by the Supreme Court to prospective jurors during voir dire (see CPL 470.05[2] ; People v. Dudley , 151 A.D.3d 878, 879, 54 N.Y.S.3d 297 ; People v. Mason , 132 A.D.3d 777, 779, 17 N.Y.S.3d 768 ). Contrary to the defendant's contention, the court's error did not constitute a mode of proceedings error exempting him from the rules of preservation (see People v. Brown , 7 N.Y.3d 880, 826 N.Y.S.2d 595, 860 N.E.2d 55 ; People v. Dudley , 151 A.D.3d at 879, 54 N.Y.S.3d 297; People v. Mason , 132 A.D.3d at 779, 17 N.Y.S.3d 768 ; People v. Cunningham , 119 A.D.3d 601, 602, 988 N.Y.S.2d 696 ). In any event, the court's remarks to the prospective jurors, while inappropriate, do not warrant reversal (see People v. Dudley , 151 A.D.3d at 879, 54 N.Y.S.3d 297; People v. Mason , 132 A.D.3d at 779, 17 N.Y.S.3d 768 ; People v. Bailey , 66 A.D.3d 491, 889 N.Y.S.2d 1 ; People v. Daniel , 37 A.D.3d 731, 830 N.Y.S.2d 319 ; People v. Alston , 225 A.D.2d 453, 639 N.Y.S.2d 347 ).
The defendant's contention that his conviction of credit card fraud in Virginia did not qualify as a predicate New York felony pursuant to Penal Law § 70.06(1)(b)(i) is unpreserved for appellate review (see People v. Samms , 95 N.Y.2d 52, 57, 710 N.Y.S.2d 310, 731 N.E.2d 1118 ; People v. Smith , 73 N.Y.2d 961, 540 N.Y.S.2d 987, 538 N.E.2d 339 ; People v. Taylor , 132 A.D.3d 915, 17 N.Y.S.3d 885 ). However, we exercise our interest of justice jurisdiction to review the issue (see People v. Rovinsky , 135 A.D.3d 969, 970, 22 N.Y.S.3d 910; People v. Ballinger , 99 A.D.3d 931, 952 N.Y.S.2d 272 ; People v. Casey , 82 A.D.3d 1005, 918 N.Y.S.2d 727 ). Here, "the People failed to satisfy their burden of establishing that defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a felony in New York" ( People v. Yancy , 86 N.Y.2d 239, 247, 630 N.Y.S.2d 985, 654 N.E.2d 1233 ; see People v. Muniz , 74 N.Y.2d 464, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ; Matter of Luis C. , 124 A.D.3d 109, 998 N.Y.S.2d 120 ). Accordingly, we vacate the adjudication of the defendant as a second felony offender and the sentence imposed thereon, and remit the matter to the Supreme Court, Queens County, for resentencing.
MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.