PEOPLE v. BLAKER (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Jerry M. Iannece, J.), rendered May 17, 2022, convicting him of robbery in the third degree and criminal possession of stolen property in the fifth degree, upon his plea of guilty, and imposing sentence upon his adjudication as a second felony offender.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the defendant's adjudication 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's contention that he was improperly sentenced as a second felony offender is unpreserved for appellate review (see CPL 470.05[2];  People v. Smith, 73 N.Y.2d 961, 962–963, 540 N.Y.S.2d 987, 538 N.E.2d 339).  Nevertheless, we reach the issue in the exercise of our interest of justice jurisdiction (see People v. Johnson, 192 A.D.3d 909, 140 N.Y.S.3d 758;  People v. Ramirez, 192 A.D.3d 825, 139 N.Y.S.3d 860;  People v. Salako, 165 A.D.3d 846, 86 N.Y.S.3d 93).

As the People correctly concede, the defendant's conviction of attempt to commit robbery in Washington, D.C., cannot be used as a predicate felony in New York (see People v. Jurgins, 26 N.Y.3d 607, 614–615, 26 N.Y.S.3d 495, 46 N.E.3d 1048;  see also Penal Law §§ 70.06[1][b][i];  160.00, 110.00;  DC Code §§ 22–2801, 22–2802).  Accordingly, we modify the judgment by vacating the defendant's adjudication as a second felony offender and the sentence imposed thereon, and we remit the matter to the Supreme Court, Queens County, for resentencing.

In light of our determination, we need not reach the defendant's remaining contention.

BARROS, J.P., MALTESE, DOWLING and VOUTSINAS, JJ., concur.