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THE FEDERAL CONSPIRACY-TO-DEAL-IN-FIREARMS STATUTE HAS DIFFERENT ELEMENTS THAN ITS NEW YORK EQUIVALENT AND THEREFORE CAN NOT BE THE BASIS OF A SECOND FELONY OFFENDER ADJUDICATION (SECOND DEPT).

The Second Department vacated defendant’s second felony offender adjudication because the predicate federal felony did not have the same elements as the New York equivalent:

… [T]he defendant’s federal conviction of conspiracy to deal in firearms under section 371 of title 18 of the United States Code is not a “predicate felony conviction” .. , because the federal conspiracy statute contains different elements than its equivalent in New York such that it is possible to violate the federal statute without engaging in conduct that is a felony in New York … . People v Mohabir, 2021 NY Slip Op 01789, Second Dept 3-24-21

 

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