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DEFENDANT SHOULD NOT HAVE BEEN ADJUDICATED A SECOND FELONY OFFENDER BASED ON A LOUISIANA CONVICTION FOR AN OFFENSE WHICH IS NOT A FELONY IN NEW YORK (SECOND DEPT). ​

The Second Department, remitting the matter for resentencing, determined the Louisiana conviction for an offense which is not a felony in New York should not have been the basis for adjudicating defendant as a second felony offender:

The defendant … contends that his adjudication as a second felony offender was illegal because the predicate Louisiana offense was not a felony under New York law. “Penal Law § 70.06 requires the imposition of enhanced sentences for those found to be predicate felons” … . 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, as conceded by the People, the defendant’s Louisiana conviction of simple robbery did not constitute a felony in New York for the purpose of enhanced sentencing and thus, the defendant should not have been adjudicated a second felony offender on the basis of that conviction … . People v Harris, 2025 NY Slip Op 00331, Second Dept 1-22-25

Practice Point: If an out-of-state conviction is for an offense which is not a felony in New York, an enhanced sentence as a second felony offender is not available.

 

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