THE FEDERAL CRIME WHICH WAS USED TO ENHANCE DEFENDANT’S SENTENCE WAS NOT A FELONY IN NEW YORK; DEFENDANT’S SECOND FELONY ADJUDICATION VACATED (SECOND DEPT).

The Second Department, vacating defendant’s second felony offender adjudication, noted that federal conviction did not constitute a felony in New York for the purpose of enhanced sentencing:

… [T]he defendant was improperly adjudicated as a second felony offender based on his federal conviction of assault with a dangerous weapon in aid of racketeering, because that predicate crime does not require actual injury as one of its elements (see 18 USC § 1959[a][3]) and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Odom, 2023 NY Slip Op 06756, Second Dept 12-27-23

Practice Point: If a federal crime does not meet the definition of a felony in New York it cannot be used to enhance defendant’s sentence. Here the federal crime did not include actual injury as one of its elements and therefore did not constitute a felony in New York. Defendant’s second felony offender adjudication was vacated.