The People, etc., respondent, v. Lavell E. Durant, appellant. (2014)

Argued—September 4, 2014

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered September 27, 2012, convicting him of robbery in the second degree, upon his plea of guilty, adjudicating him a second violent felony offender, and thereupon sentencing him to a determinate term of imprisonment of eight years, plus a period of five years of postrelease supervision.

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 violent felony offender and the sentence imposed thereon;  as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

The defendant claims that his adjudication as a second violent felony offender was illegal because the predicate offense was not a felony under New York law.   Although that contention is unpreserved for appellate review (see CPL 470.05 [2];  People v. Samms, 95 N.Y.2d 52, 57;  People v. Iliff, 96 AD3d 974), we reach it in the exercise of our interest of justice jurisdiction.

As the People correctly concede, the defendant's prior conviction of robbery with firearms or other dangerous weapons under North Carolina law does not constitute a predicate violent felony conviction (see N.C. Gen.Stat. § 14–87 [a];  Penal Law § 70.04[1][b][i] ).   Accordingly, we modify the judgment by vacating the defendant's adjudication as a second violent felony offender and the sentence imposed thereon, and we remit the matter to the Supreme Court, Kings County, for resentencing (see People v. Stevens, 114 AD3d 969).

SKELOS, J.P., ROMAN, HINDS–RADIX and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court