Steven Banks, The Legal Aid Society, New York (Jeffrey Dellheim of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), for respondent.
Tom, J.P., Friedman, Acosta, Andrias, Richter, JJ.
Judgments, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered December 2, 2004, convicting defendant, upon his pleas of guilty, of two counts of attempted criminal sale of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to concurrent terms of 1½ to 3 years, and order, same court and Justice, entered on or about March 7, 2007, which denied defendant's CPL 440.20 motion to set aside the sentences, unanimously affirmed.
Initially, we reject the People's argument that this appeal has been rendered moot by the fact that defendant has completed his entire sentence. Defendant is not challenging the length of his sentence. Instead, he is challenging the use of his federal conviction as a predicate felony. Such a determination has potential consequences (see CPL 400.21 [subsequent use of finding]).
The court properly sentenced defendant as a second felony offender because his prior federal conviction under the Hobbs Act (18 USC § 1951), which criminalizes the interference with commerce by robbery or extortion, was the equivalent of a New York felony (see People v Muniz, 74 N.Y.2d 464 ). Defendant argues that the Hobbs Act is broader than the New York extortion statute (Penal Law § 155.30) because the federal statute encompasses the taking of property by threatening to damage property in the future. However, under the New York statute, larceny by extortion may be committed by threatening to damage property at any time, whether immediately or in the future (Penal Law § ...