PEOPLE v. THOMAS

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Damon THOMAS, appellant.

Decided: March 23, 2010

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ. Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.), rendered May 27, 2008, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, the defendant's adjudication as a persistent violent felony offender and the sentence imposed are vacated, and the matter is remitted to the Supreme Court, Kings County, for a hearing to determine whether the defendant's conviction in 1997 for robbery in New Jersey is sufficient to serve as a predicate felony in New York and for resentencing thereafter;  as so modified, the judgment is affirmed.

The defendant contends that he was deprived of his right to due process, as required by People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64, by the prosecutor's failure to produce a report of an interview of the complainant by New York City Police Detective Daniel Perez and the memo-book entries of the two police officers who transported the complainant to a showup identification.   The defendant's Rosario objections were raised for the first time in a motion to set aside the verdict pursuant to CPL 330.30(1).   Since the factual assertions concerning this undisclosed material were based on matter outside of the record, the Supreme Court properly declined to consider them on the defendant's motion to set aside the verdict pursuant to CPL 330.30(1) (see People v. Ai Jiang, 62 A.D.3d 515, 880 N.Y.S.2d 12;  People v. Kronberg, 243 A.D.2d 132, 135, 672 N.Y.S.2d 63;  People v. Leka, 209 A.D.2d 723, 619 N.Y.S.2d 144).   Accordingly, the Supreme Court properly denied that branch of the defendant's motion pursuant to CPL 330.30(1) asserting Rosario violations (see CPL 330.40[2][e][i];  People v. Thomas, 55 A.D.3d 357, 866 N.Y.S.2d 22;  see also People v. Herrington, 194 A.D.2d 379, 598 N.Y.S.2d 501).

The defendant's claims of ineffective assistance of counsel are without merit (see People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

While there is no basis to set aside the conviction, the defendant's adjudication as a persistent violent felony offender and the sentence imposed must be vacated.   The People correctly concede that the defendant's 1986 New Jersey conviction for burglary cannot serve as a predicate violent felony offense in New York (see People v. Muniz, 74 N.Y.2d 464, 471, 548 N.Y.S.2d 633, 547 N.E.2d 1160;  compare N.J. Stat. § 2C:18-1 with New York Penal Law § 140.25).   The People also correctly concede that it is unclear whether the defendant's 1997 New Jersey conviction for robbery could serve as a predicate violent felony offense for sentencing purposes in New York (compare N.J. Stat. § 2C:15-1 with New York Penal Law § 160.15;  see People v. Yancy, 86 N.Y.2d 239, 246-247, 630 N.Y.S.2d 985, 654 N.E.2d 1233).   Hence, this matter must be remitted to the Supreme Court, Kings County, for a hearing to determine whether the defendant's 1997 New Jersey robbery conviction is sufficient to serve as a predicate violent felony offense, for a new adjudication with respect to whether the defendant is a persistent violent felony offender, and for resentencing thereafter (see People v. Ferdinand, 288 A.D.2d 486, 733 N.Y.S.2d 885;  People v. York, 133 A.D.2d 130, 518 N.Y.S.2d 665).

The defendants' remaining contentions are unpreserved for appellate review and, in any event, do not require reversal.

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