           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

631
KA 16-00659
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

THOMAS C. HALL, DEFENDANT-APPELLANT.


CARR SAGLIMBEN LLP, OLEAN (JAY D. CARR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Ronald D.
Ploetz, J.), rendered February 1, 2016. The judgment convicted
defendant, upon his plea of guilty, of criminal facilitation in the
second degree.

     It is hereby ORDERED    that the judgment so appealed from is
unanimously modified as a    matter of discretion in the interest of
justice and on the law by    vacating the sentence, and as modified the
judgment is affirmed, and    the matter is remitted to Cattaraugus County
Court for resentencing.

     Memorandum: On appeal from a judgment convicting him upon a plea
of guilty of criminal facilitation in the second degree (Penal Law
§ 115.05), defendant contends that he was improperly sentenced as a
second felony offender. Defendant failed to preserve that contention
for our review (see People v Smith, 73 NY2d 961, 962-963), but we
exercise our power to reach it as a matter of discretion in the
interest of justice (see CPL 470.15 [3] [c]), and we note that the
People correctly concede defendant’s point. We therefore modify the
judgment by vacating the sentence, and we remit the matter to County
Court for resentencing. It is well settled that, “under New York’s
‘strict equivalency’ standard for convictions rendered in other
jurisdictions, a federal conviction for conspiracy to commit a drug
crime may not serve as a predicate felony for sentencing purposes”
(People v Ramos, 19 NY3d 417, 418).




Entered:    April 28, 2017                         Frances E. Cafarell
                                                   Clerk of the Court
