People v. Carter

• Decision Date: 20 May 1991
• Parties: The PEOPLE, etc., Respondent, v. Leroy CARTER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 216

570 N.Y.S.2d 216

173 A.D.2d 631

The PEOPLE, etc., Respondent, v. Leroy CARTER, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 20, 1991.

Elena C. Giarratano, Hartsdale, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Elyse Lazansky and Richard Longworth Hecht, of counsel), for respondent.

Before KOOPER, J.P., and HARWOOD, ROSENBLATT and RITTER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Westchester County (West, J.), rendered August 2, 1989, convicting him of grand larceny in the third degree, grand larceny in the fourth degree (two counts), and attempted grand larceny in the third degree, upon a jury verdict, and imposing sentence as a second felony offender.

ORDERED that the judgment is affirmed.

The defendant was convicted in 1985 in New Jersey for theft by deception of $623 by deception in 1983. This New Jersey conviction was the basis of his adjudication as a second felony offender. On appeal, the defendant contends that the sentencing court erred in sentencing him as a second felony offender because the predicate felony upon which his second offender status is based was obtained in another state and is not a felony in this State. We disagree. At the time the defendant committed the theft in New Jersey and at the time judgment was rendered in New Jersey, the crime would have been classified as grand larceny in the third degree, a class E felony, under the New York Penal Law (see, L.1986, ch. 515, § 1). Generally, whether a prior conviction is a predicate felony conviction is to be determined by applying the provisions of the law which were in effect at the time the crime was committed (see, People v. Oliver, 1 N.Y.2d 152, 158, 151 N.Y.S.2d 367, 134 N.E.2d 197; People v. Griffin, 97 A.D.2d 481, 467 N.Y.S.2d 681; People v. McAtee, 53 A.D.2d 791, 385 N.Y.S.2d 155). Further, the amendments enacted in Laws of 1986, chapter 515, although ameliorative in nature, have only been applied to cases where the judgment was rendered after their effective date (see, People v. Behlog, 74 N.Y.2d 237, 544 N.Y.S.2d 804, 543 N.E.2d 69; People v. Bergos, 170 A.D.2d 611, 566 N.Y.S.2d 385). Because the defendant's conviction in New Jersey of theft by deception carried a sentence of imprisonment in excess of one year in the foreign jurisdiction and its elements are equivalent to what was a felony in New York at the time the crime was committed and at the time the New Jersey judgment was rendered, this prior out-of-state conviction is a predicate felony conviction in New York (see, N.J. Statutes §§ 2C:20-2[b][2]; 2C:43-6; Penal Law § 70.06[1][b][i]; People v. Sailor, 65 N.Y.2d 224, 237, 491 N.Y.S.2d 112, 480...