People v. Johnson

Order unanimously reversed on the law, motion granted and defendant remanded to Supreme Court, Erie County, for resentencing. Memorandum: On this appeal from denial of his motion pursuant to CPL 440.20, defendant challenges his sentencing as a second felony offender on the basis of a prior New Jersey conviction of promoting prostitution. Defendant contends that the out-of-State conviction was not one for which a term of imprisonment in excess of one year was authorized in this State (Penal Law § 70.06). We agree. The sparse record before us contains neither a transcript of the second felony offender hearing nor the basis for the court’s determination that defendant is a predicate felon. According to defendant’s New Jersey certificate of conviction, he was convicted pursuant to New Jersey Statutes Annotated § 2C:34-1 (b) (4) of knowingly promoting prostitution by soliciting a person to patronize a prostitute. The equivalent New York offense is the class A misdemeanor of promoting prostitution in the fourth degree (Penal Law § 230.20). Since the equivalent New York crime is not one for which a sentence of more than one year is authorized (Penal Law § 70.15), the New Jersey conviction cannot furnish the predicate for sentencing defendant as a second felony offender (Penal Law § 70.06; People v Gonzalez, 61 NY2d 586, 589). (Appeal from order of Supreme Court, Erie County, Marshall, J. — motion to vacate.) Present — Denman, J. P., Boomer, Balio, Lawton and Davis, JJ.