Second Felony Offender Adjudication Was Error
Following a plea to three robbery counts, the trial court sentenced Mr. Bilfulco as a second felony offender to a prison term of 8 to 16 years, based upon a prior federal conviction for possession of a firearm by a felon. An out-of-state felony conviction qualifies as a predicate felony in New York only when it is for a crime “whose elements are equivalent to those of a New York felony.” Because the predicate federal crime did not require as one of its elements that the firearm be operable, it did not constitute a New York felony for the purpose of enhanced sentencing. Accordingly, the Appellate Division vacated the adjudication as a second felony offender, and the matter was remitted for resentencing.
Lynn W. L. Fahey represented Mr. Bilfulco
