PEOPLE v. GILCHRIST

The New Jersey robbery statute under which defendant was previously convicted (NJ Stat Annot § 2C:15-1 [a] [2]) punishes the knowing use of force in the immediate flight from a theft, while the New York robbery statute (Penal Law § 160.00) punishes only the use of force with the intent to compel a person to give up his property or prevent resistance to the taking. As the People concede, since the New Jersey statute is broader and proscribes conduct that is not a felony in New York and it cannot be determined from the New Jersey indictment at what point in the robbery defendant utilized force ( see, People v Muniz, 74 N.Y.2d 464, 467-468), this foreign conviction should not have been considered as a predicate felony for the purpose of enhanced sentencing. Defendant's sentence is vacated and the case is remanded so that defendant may be resentenced as a first time felony offender.

Concur — Ellerin, J.P., Rubin, Nardelli, Tom and Mazzarelli, JJ.