People v. Wahhab

210 A.D.3d 809

177 N.Y.S.3d 718

The PEOPLE, etc., respondent,

v.Sadiq Abdul WAHHAB, appellant.

2021–04826

Ind. No. 1763/10

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

Submitted—October 13, 2022

November 9, 2022

Alan Katz, Garden City Park, NY, for appellant.

Anne T. Donnelly, District Attorney, Mineola, NY (Monica M.C. Leiter and David L. Glovin of counsel), for respondent.

COLLEEN D. DUFFY, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, LILLIAN WAN, JJ.

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Nassau County (Angelo A. Delligatti, J), imposed June 14, 2021, upon his convictions of robbery in the second degree (two counts), upon a jury verdict.

ORDERED that the resentence is affirmed.

In 2012, the defendant was convicted of two counts of robbery in the second degree. On April 19, 2012, the defendant was adjudicated a second felony offender based upon his prior conviction of the federal offense of bank robbery (see 18 USC § 2113 [a]), and sentenced to concurrent determinate terms of imprisonment of 13 years, to be followed by a period of postrelease supervision of 5 years. In a postjudgment motion pursuant to CPL article 440, the defendant moved, inter alia, to set aside his sentence on the ground that his prior conviction of bank robbery was improperly used to adjudicate him a second felony offender. In an order entered January 8, 2020, the Supreme Court, among other things, set aside the defendant's sentence on the ground that the defendant's prior conviction of bank robbery did not qualify as a predicate felony, and directed that the defendant be resentenced.

In February 2021, the People filed a revised predicate felony statement, seeking to adjudicate the defendant a second felony offender based upon his 1998 conviction in Virginia for possession of cocaine with intent to distribute (see Virginia Code § 18.2–248 [A]). The defendant opposed adjudication as a second felony offender, asserting that his prior conviction under Virginia Code § 18.2–248(A) did not qualify as a predicate felony because that statute could be violated by conduct not constituting a felony in New York. The Supreme Court determined that the defendant's prior conviction in Virginia constituted a predicate felony, adjudicated the defendant a second felony offender, and thereupon resentenced the defendant to concurrent determinate terms of imprisonment of 13 years, to be followed by a period of postrelease supervision of 5 years. The defendant appeals.

"An out-of-state felony conviction qualifies as a predicate felony under Penal Law § 70.06 only if it is for a crime whose elements are equivalent to those of a felony in New York" ( People v. Vasquez, 173 A.D.3d 1073, 1074, 100 N.Y.S.3d 887 ; see People v. Yusuf, 19 N.Y.3d 314, 321, 947 N.Y.S.2d 399, 970 N.E.2d 422 ; People v. Muniz, 74 N.Y.2d 464, 467, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ; People v. Boston, 79 A.D.3d 1140, 913 N.Y.S.2d 344 ). "As a general rule, this inquiry is limited to a comparison of the crimes’ elements as they are respectively defined in the foreign and New York penal statutes" ( People v. Muniz, 74 N.Y.2d at 467–468, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ; see People v. Jurgins, 26 N.Y.3d 607, 613, 26 N.Y.S.3d 495, 46 N.E.3d 1048 ). "However, ‘a sentencing court [may] go beyond the statute and scrutinize the accusatory instrument in the foreign jurisdiction where the statute renders criminal not one act but several acts which, if committed in New York, would in some cases be felonies and in others would constitute only misdemeanors’ " ( People v. Boston, 79 A.D.3d at 1141, 913 N.Y.S.2d 344, quoting People v. Gonzalez, 61 N.Y.2d 586, 590, 475 N.Y.S.2d 358, 463 N.E.2d 1210 ; see People v. Jurgins, 26 N.Y.3d at 613, 26 N.Y.S.3d 495, 46 N.E.3d 1048 ; People v. Graves, 142 A.D.3d 559, 560–561, 37 N.Y.S.3d 131 ).

Contrary to the defendant's contention, his prior conviction...