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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JUAN FERMIN, Appellant.

As the People concede, since the Florida burglary statute under which defendant was previously convicted (Fla Stat Annot § 810.02) proscribes the entering or remaining in a dwelling, a structure or a conveyance with the intent to commit an "offense" therein, the term "offense" meaning, among other things, a "`noncriminal violation' * * * punishable * * * by no other penalty than a fine, forfeiture, or other civil penalty" (Fla Stat Annot § 775.08), it includes conduct that is not a felony under its closest New York felony analog (Penal Law § 140.20), which requires the intent to commit a "crime", defined in both New York and Florida as a felony or a misdemeanor (Penal Law § 10.00; Fia Stat Annot § 775.08 [4]), and thus such prior conviction should not have been the basis for a predicate felon adjudication ( People v Muniz, 74 NY2d 464).

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PEOPLE v. FERMIN
(Sep 17, 1996)