PEOPLE v. BALLINGER

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The PEOPLE, etc., respondent, v. Aaron BALLINGER, appellant.

Decided: October 17, 2012

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and ROBERT J. MILLER, JJ. Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M. Lieberman, and Adam M. Koelsch of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered May 7, 2009, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), after a nonjury trial, and imposing sentence upon him as a second violent felony offender.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed and the adjudication of the defendant as a second violent felony offender; 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's contention that his waiver of the right to a jury trial was inadequate is unpreserved for appellate review (see CPL 470.05[2]; People v. Torres, 24 A.D.3d 692, 692, 808 N.Y.S.2d 380). In any event, the record establishes that the defendant's waiver was knowing, intelligent, and voluntary (see People v. Torres, 24 A.D.3d at 692, 808 N.Y.S.2d 380; People v. Hinton, 6 A.D.3d 724, 724, 775 N.Y.S.2d 173; People v. Solouzo, 235 A.D.2d 439, 439, 653 N.Y.S.2d 355).

The defendant failed to preserve for appellate review his contention that his conviction of burglary in the third degree in the State of Connecticut did not qualify as a predicate New York felony pursuant to Penal Law § 70.06(1)(b)(i) (see People v. Samms, 95 N.Y.2d 52, 57, 710 N.Y.S.2d 310, 731 N.E.2d 1118; People v. Casey, 82 A.D.3d 1005, 1005, 918 N.Y.S.2d 727). However, we reach this issue in the exercise of our interest of justice jurisdiction (see People v. Casey, 82 A.D.3d at 1005, 918 N.Y.S.2d 727; People v. Boston, 79 A.D.3d 1140, 1140, 913 N.Y.S.2d 344; People v. Burgos, 97 A.D.2d 826, 468 N.Y.S.2d 712). As the People correctly concede, the out-of-state crime of which the defendant was convicted would not constitute a felony in New York for the purposes of enhanced sentencing (see People v. Muniz, 74 N.Y.2d 464, 467–468, 548 N.Y.S.2d 633, 547 N.E.2d 1160; Penal Law § 140.20; Conn. Gen. Stat. § 53a–103; cf. People v. Cardona, 9 A.D.3d 337, 781 N.Y.S.2d 9; People v. Schaner, 133 A.D.2d 582, 520 N.Y.S.2d 5; People v. White, 96 A.D.2d 541, 541–542, 465 N.Y.S.2d 46).

Accordingly, the defendant's adjudication as a second violent felony offender and the sentence imposed on his conviction of two counts of criminal possession of a weapon in the second degree must be vacated. Moreover, since it is not clear from the record whether the sentence imposed in connection with the defendant's conviction of murder in the second degree was affected by the Supreme Court's mistaken belief that the defendant had previously been convicted of a violent felony, that sentence must also be vacated, and the matter remitted to the Supreme Court, Kings County, for resentencing on all counts (see People v. Torres, 145 A.D.2d 665, 536 N.Y.S.2d 992).

In light of our determination, we need not reach the defendant's remaining contention (see People v. Burgos, 97 A.D.2d at 827–828, 468 N.Y.S.2d 712).

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