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THE FEDERAL POSSESSION-OF-A-FIREARM-BY-A-FELON STATUTE IS NOT THE EQUIVALENT OF A NEW YORK FELONY BECAUSE THE FEDERAL STATUTE DOES NOT REQUIRE A SHOWING THE WEAPON WAS OPERABLE; DEFENDANT’S SECOND FELONY OFFENDER ADJUDICATION VACATED (SECOND DEPT).

The Second Department, vacating defendant’s second felony offender adjudication, determined the federal possession-of-a-firearm-by-a-felon statute is not the equivalent of a New York felony:

… [T]he defendant should not have been adjudicated a second felony offender on the basis of a prior federal conviction for possession of a firearm by a felon (see 18 USC § 922[g][1]). “An out-of-state felony conviction qualifies as a predicate felony under New York’s sentencing statutes only if it is for a crime ‘whose elements are equivalent to those of a New York felony'” (… see Penal Law § 70.06[1][b][i]). Here, the defendant’s predicate crime does not require as one of its elements that the firearm be operable … and thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Bilfulco, 2022 NY Slip Op 04637, Second Dept 7-20-22

Practice Point: The federal possession-of-a-weapon statute (18 USC 922[g][1]) is not the equivalent of a New York felony because it does not require that the weapon be operable. Therefore that federal statute cannot be the basis for a second felony offender adjudication.

 

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