People v. Durant

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered September 27, 2012, convicting him of robbery in the second degree, upon his plea of guilty, adjudicating him a second violent felony offender, and thereupon sentencing him to a determinate term of imprisonment of eight years, plus a period of five years of postrelease supervision.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the defendant’s adjudication as a second violent felony offender and the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

The defendant claims that his adjudication as a second violent felony offender was illegal because the predicate offense was not a felony under New York law. Although that contention is unpreserved for appellate review {see CPL 470.05 [2]; People v Samms, 95 NY2d 52 , 57 [2000]; People v Iliff, 96 AD3d 974

As the People correctly concede, the defendant’s prior conviction of robbery with firearms or other dangerous weapons under North Carolina law does not constitute a predicate violent felony conviction (see NC Gen Stat § 14-87 [a]; Penal Law § 70.04 [1] [b] [i]). Accordingly, we modify the judgment by vacating the defendant’s adjudication as a second violent felony offender and the sentence imposed thereon, and we remit the matter to the Supreme Court, Kings County, for resentencing (see People v Stevens, 114 AD3d 969 [2014]).

Skelos, J.P, Roman, Hinds-Radix and LaSalle, JJ., concur.