                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 16, 2014                    105539
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

GARY J. PARKER,
                    Appellant.
________________________________


Calendar Date:    September 11, 2014

Before:   Peters, P.J., Lahtinen, Stein, Garry and Devine, JJ.

                              __________


     Cheryl L. Sovern, Clifton Park, for appellant.

      J. Anthony Jordan, District Attorney, Fort Edward (Brandon
P. Rathbun of counsel), for respondent.

                              __________


Stein, J.

      Appeal from a judgment of the County Court of Washington
County (McKeighan, J.), rendered October 5, 2012, convicting
defendant upon his plea of guilty of the crime of burglary in the
third degree.

      In satisfaction of a five-count indictment, defendant
pleaded guilty to one count of burglary in the third degree and
waived his right to appeal. Pursuant to the plea agreement,
defendant was promised a sentence of 2 to 6 years in prison, with
a recommendation of shock incarceration. However, prior to
sentencing, County Court notified defendant that it could not
impose the promised sentence because the presentence
investigation report revealed that defendant had a felony
conviction in Florida that qualified him as a second felony
                              -2-                105539

offender. The court advised defendant that it would sentence him
to a prison term of 3 to 6 years or, alternatively, would allow
defendant to withdraw his plea. Defendant declined to withdraw
his plea and was sentenced, as a second felony offender, to a
prison term of 3 to 6 years. Defendant now appeals, contending
that County Court erred in determining him to be a second felony
offender because the Florida felony was not the equivalent of a
New York felony.

      We initially note that defendant's challenge to his status
as a second felony offender is not precluded by his appeal waiver
(see People v Abrams, 75 AD3d 927, 928 [2010], lv denied 15 NY3d
918 [2010]; People v Greathouse, 62 AD3d 1212, 1213 [2009], lv
denied 13 NY3d 744 [2009]). On the other hand, we agree with the
People's assertion that he failed to preserve this claim by
objecting or otherwise challenging the Florida conviction at
sentencing (see People v Samms, 95 NY2d 52, 57 [2000]; People v
Smith, 73 NY2d 961, 962-963 [1989]). Nonetheless, we deem this
to be an appropriate instance in which to take corrective action
in the interest of justice.

      In determining whether a defendant is a second felony
offender, a court must ascertain if the defendant has been
convicted in another jurisdiction of "an offense for which a
sentence to a term of imprisonment in excess of one
year . . . was authorized and is authorized in this state
irrespective of whether such sentence was imposed" (Penal Law §
70.06 [1] [b] [i]). This inquiry requires a determination as to
"whether the foreign conviction has an equivalent among New
York's felony-level crimes" (People v Muniz, 74 NY2d 464, 467
[1989]; see People v Olah, 300 NY 96, 98 [1949]). Generally,
such "inquiry is limited to a comparison of the crimes' elements
as they are respectively defined in the foreign and New York
penal statutes," without regard to the charging instruments
(People v Muniz, 74 NY2d at 467-468; see People v Gonzalez, 61
NY2d 586 [1984]).1 Thus, "technical distinctions between the New


    1
        "[H]owever, where the foreign statute under which the
defendant was convicted renders criminal several different acts,
some of which would constitute felonies and others of which would
                              -3-                105539

York and foreign penal statutes can preclude use of a prior
felony as a predicate for enhanced sentencing, even though the
actual criminal conduct leading to the foreign conviction would
have fallen within the ambit of the New York offense" (Matter of
North v Board of Examiners of Sex Offenders of State of N.Y., 8
NY3d 745, 751 [2007]).

      Here, the information contained with the second felony
offender notice indicates that, in 2001, defendant was convicted
in Florida of a felony "theft" in the third degree (see Fla Stat
Ann § 812.014). Under the applicable Florida penal statute, it
is a crime to "knowingly obtain[] or use[], or endeavor[] to
obtain or to use, the property of another with intent to, either
temporarily or permanently . . . [d]eprive the other person of a
right to the property or a benefit from the property . . . [or
a]ppropriate the property to his or her own use or to the use of
any person not entitled to the use of the property" (Fla Stat Ann
§ 812.014 [1] [a], [b] [emphasis added]). In comparison, New
York's larceny statutes do not contain analogous language with
regard to mere temporary deprivations or appropriations (see
Penal Law §§ 155.00 [3], [4]; 155.05 [1]; People v Faden, 1 AD3d
200, 201 [2003], lv denied 2 NY3d 762 [2004]). Thus, the Florida
crime undoubtedly contains an element that is not included in New
York's larceny offenses and, as a result, the Florida conviction
is not sufficiently analogous to a New York felony to serve as a
predicate felony for purposes of Penal Law § 70.06 (see People v
Faden, 1 AD3d at 201). Accordingly, we vacate defendant's
sentence and remit to County Court for resentencing.

     Peters, P.J., Lahtinen, Garry and Devine, JJ., concur.




constitute only misdemeanors if committed in New York" (People v
Muniz, 74 NY2d at 468), a court may resort to consideration of
the foreign accusatory instrument to "resolve whether the foreign
crime was, in fact, the equivalent of a New York felony" (id. at
469; see People ex rel. Gold v Jackson, 5 NY2d 243, 246 [1959]).
                              -4-                  105539

      ORDERED that the judgment is modified, as a matter of
discretion in the interest of justice, by vacating the sentence
imposed; matter remitted to the County Court of Washington County
for resentencing; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
