People v. Lee

251 A.D.2d 161, 673 N.Y.S.2d 905, 1998 N.Y. App. Div. LEXIS 7299

Opinion

—Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered July 31, 1996, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him, as second felony offender, to a term of 6 years to life, unanimously affirmed.

The court properly sentenced defendant as a second felony offender. Defendant was not entitled to a hearing pursuant to CPL 400.21 (5) since he did not controvert the allegations in the predicate felony statement (CPL 400.21 [4]; see, People v Gonzalez, 108 AD2d 622, 623-624). In any event, the court properly rejected defendant’s challenges to the sufficiency of the documentation provided by the People with respect to the prior conviction. Defendant’s Virginia conviction for distribution of a controlled substance was analogous to criminal sale of a controlled substance under New York law, and the availability of defenses is irrelevant (People v Searvance, 236 AD2d 306, lv denied 89 NY2d 1041; People v Rexach, 220 AD2d 362, Iv denied 87 NY2d 924). The court properly relied on the accusatory instrument since the Virginia statute (Va Code Annot § 18.2-248 [A]) that defendant violated renders criminal several acts which, if committed in New York, would not all be felonies (see, People v Gonzalez, 61 NY2d 586). We have reviewed defendant’s remaining arguments and find them to be without merit. Concur — Sullivan, J. P., Rosenberger, Rubin, Williams and Mazzarelli, JJ.