People v. Lewis

250 A.D.2d 479, 672 N.Y.S.2d 701, 1998 N.Y. App. Div. LEXIS 6192

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 a second felony offender, to a term of 6 years to life, unanimously affirmed.

Defendant never raised before the sentencing court his current contention, that the element of distribution of drugs under Virginia law is broader than the comparable New York element of sale of drugs (see, Va Code § 18.2-248), so that his Virginia conviction lacks equivalency to a New York felony. Therefore, the claim is unpreserved for appellate review (People v Smith, 73 NY2d 961, 962-963). We decline to review it in the interest of justice. Were we to review this argument, we would find it to be without merit. The court properly sentenced defendant as a second felony offender. His prior Virginia conviction for possession of cocaine with intent to distribute and distributing cocaine was analogous to criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]; see, People v Searvance, 236 AD2d 306, 307, lv denied 89 NY2d 1041; People v Rexach, 220 AD2d 362, lv denied 87 NY2d 924). Concur — Milonas, J. P., Rosenberger, Nardelli, Wallach, and Rubin, JJ.