
    Fourth Department,
    September, 1996
    (September 27, 1996)
    The People of the State of New York, Respondent, v Vincent Francis, Appellant.
    [647 NYS2d 885]
   Judgment unanimously modified on the law and as modified affirmed and matter remitted to Cattaraugus County Court for resentencing in accordance with the following Memorandum: County Court erred in sentencing defendant as a second felony offender based upon two prior California convictions. Neither of those convictions constitutes a predicate felony conviction pursuant to Penal Law § 70.06. The California burglary statute under which defendant was convicted (see, Cal Penal Code § 459) has no New York felony equivalent (see, People v Lockwood, 186 AD2d 985). Assault with intent to commit rape under the California Penal Code (see, Cal Penal Code §§ 220, 240, 261) encompasses conduct comparable to attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [1], [2]), a class C violent felony (see, Penal Law § 70.02 [1] [b]). The California statute, however, also criminalizes conduct that would constitute attempted rape in the third degree (see, Penal Law § 130.25 [1]), a class A misdemeanor (see, Penal Law § 110.05 [7]), as well as conduct that would not constitute a crime in this State (see generally, People v Hough, 159 Mise 2d 997). The People failed to produce the California accusatory instrument to clarify the statutory charge (see, People v Gonzalez, 61 NY2d 586, 591) and enable the sentencing court to "determine, if possible, for which act under the statute the defendant was convicted” (People v Jackson, 118 AD2d 469, 470, Iv denied 67 NY2d 944). Consequently, the People failed to meet their burden of establishing that the California conviction of assault with intent to commit rape constitutes a predicate felony (see, People v Jackson, supra, at 471; see also, CPL 400.21 [7]). We modify the judgment, therefore, by vacating the sentence and remit the matter to Cattaraugus County Court for resentencing of defendant as a first felony offender.

We have examined defendant’s remaining contentions, including those raised in defendant’s pro se supplemental brief, and conclude that none requires reversal. (Appeal from Judgment of Cattaraugus County Court, Himelein, J.—Attempted Burglary, 2nd Degree.) Present—Green, J. P., Pine, Fallon, Callahan and Davis, JJ.  