THE FEDERAL FELONY DID NOT QUALIFY AS A NEW YORK PREDICATE FELONY, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should not have been sentenced as a second felony offender because the federal conviction did not qualify as the equivalent of the New York felony:

… [T]he defendant was improperly adjudicated a second felony offender on the basis of a prior federal conviction for possession of a firearm with an obliterated serial number (see 18 USC § 922[k]). “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” … . Here, the defendant’s predicate crime does not require as one of its elements that the firearm be operable (see 18 USC § 922[k] … ) and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Dyce, 2020 NY Slip Op 04853, Second Dept 9-2-20