People v. Bell

259 A.D.2d 429, 687 N.Y.S.2d 136, 1999 N.Y. App. Div. LEXIS 2820

Opinion

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered March 18, 1997, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

Defendant failed to preserve his appellate challenge to his second felony offender status (People v Smith, 73 NY2d 961), and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant was properly adjudicated a second felony offender based upon his New Jersey conviction (NJ Stat Annot § 2C:35-7). We find that resort to the New Jersey accusatory instrument is appropriate, and that such instrument establishes that the New Jersey crime involved possession of cocaine, not marihuana (see, People v Searvance, 236 AD2d 306, lv denied 89 NY2d 1041). Defendant was not deprived of effective assistance of counsel by his attorney’s abandonment of this issue, since pursuit of this issue would have been futile (see, People v Lane, 60 NY2d 748, 750-751). We have considered and rejected defendant’s additional claims. Concur — Rosenberger, J. P., Tom, Wallach and Mazzarelli, JJ.