People v. Alvarado , 994 N.Y.S.2d 861 ( 2014 )

People v Alvarado (2014 NY Slip Op 07741)

People v Alvarado

2014 NY Slip Op 07741

Decided on November 13, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 13, 2014
Gonzalez, P.J., Tom, Renwick, Gische, JJ.

13441 5573/11

[*1] The People of the State of New York, Respondent,

v

Luis S. Alvarado, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Molly Ryan of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David E.A. Crowley of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered June 20, 2012, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him, as a second felony offender, to a term of 3 years, unanimously affirmed.

Defendant was properly adjudicated a second felony offender on the basis of a conviction under a Florida evidence-tampering statute. Based on a reasonable reading of the Florida statute (Fla Stat § 918.13), we find that it is equivalent to a New York felony (Penal Law § 215.40). The Florida statute does not apply to intangible evidence, its prohibition of the removal of evidence corresponds to suppressing evidence by concealment, alteration or destruction under the New York analog, and, like the New York statute, the Florida statute requires specific intent for both its destruction and fabrication prongs.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 13, 2014

CLERK