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THE FEDERAL OFFENSE WHICH SERVED AS A PREDICATE FOR DEFENDANT’S SECOND-FELONY-OFFENDER DESIGNATION DOES NOT REQUIRE THAT THE FIREARM INVOLVED BE OPERABLE; THE RELEVANT NEW YORK FELONY OFFENSE INCLUDES OPERABILITY AS AN ELEMENT; THEREFORE THE FEDERAL OFFENSE IS NOT A VALID PREDICATE OFFENSE (SECOND DEPT).

The Second Department, vacating defendant’s second-felony-offender designation, determined the federal crime constituting the predicate offense was not a felony in New York  One of the elements of the relevant New York felony was that the firearm involved in the offense be operable. That element was missing from the federal offense:

“Penal Law § 70.06 requires the imposition of enhanced sentences for those found to be predicate felons” … . Among other criteria, for the purpose of determining whether a prior conviction is a predicate felony conviction, the conviction must have been in New York of a felony, “or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed” (Penal Law § 70.06[1][b][i]). “Since New York authorizes sentences exceeding one year only for felonies, the second prong of this statutory test requires an inquiry to determine whether the foreign conviction has an equivalent among New York’s felony-level crimes” … . “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” … . 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 Davis, 2025 NY Slip Op 00977, Second Dept 2-19-25

Practice Point: Here defendant’s prior federal offense did not require that the firearm involve be operable. The corresponding New York felony requires operability. Therefore the federal offense could not serve as a predicate offense for a second-felony-offender designation.

 

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