People v. Robinson

Judgment unanimously modified, on the law, by vacating the sentence imposed and, as modified, affirmed and defendant remanded to Onondaga County Court for resentencing. Memorandum: Defendant was sentenced as a second felony offender based on his prior Federal conviction of the felony of making false statements in an application for a loan from a Federal credit union in violation of 18 USC § 1014. Defendant’s conviction in Federal court does not qualify as a predicate felony since the elements of the Federal crime do not constitute a felony under the laws of New York State (see, People v Gonzalez, 61 NY2d 586, 589; People v Olah, 300 NY 96; People v Gipson, 109 AD2d 1101).

The elements of the Federal crime consist of knowingly making a false statement or report "for the purpose of influencing in any way the action of * * * a Federal credit union * * * upon any application * * * or loan”. (18 USC § 1014, emphasis added.) The most comparable felony under New York law is offering a false instrument for filing in the first degree, and the elements of that crime are: offering a false instrument for filing with the records of a public office knowing that it contains a false statement, "with intent to defraud the state or any political subdivision thereof’ (Penal Law § 175.35, emphasis added). As pointed out in Williams v United States (458 US 279, 287, n 8), the Federal crime (unlike the State crime) does not require an intent to defraud, but an intent only to influence. Moreover, it cannot be said that a Federal credit union is equivalent to the State or any political subdivision thereof or that loan applications filed with a Federal credit union are part of the records of a public office.

Even though the issue was not raised before the sentencing court, because the sentence is illegal, it is reviewable as a matter of law (see, People v David, 65 NY2d 809; People v Fuller, 57 NY2d 152, 156). (Appeal from judgment of Onondaga County Court, Burke, J.—robbery, first degree.) Present —Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.