People v. Rexach

220 A.D.2d 362, 633 N.Y.S.2d 131, 1995 N.Y. App. Div. LEXIS 10756

Opinion

—Judgment, Supreme Court, Bronx County (Frank Diaz, J.), rendered December 13, 1993, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 41/2 to 9 years, unanimously affirmed.

We reject defendant’s claim that he was improperly adjudicated a second felony offender because his prior Federal conviction for distributing cocaine within 1,000 feet of a public school was based on a statute (21 USC § 841 [a] [1]; former § 845a [a], now § 860 [a]) that is broader than its New York counterpart criminalizing the sale of a controlled substance in or near school grounds (Penal Law §§ 220.44, 220.00 [14]). This Court has specifically declined to accept the argument that 21 USC § 841 (a) (1) may not be used to enhance sentence because its requirement of "distribution” is not analogous to the State’s requirement of a "sale” (People v Vasquez, 167 AD2d 236, Iv denied 77 NY2d 912), or because, unlike its New York "sale” counterparts, it is not subject to the defense of agency (People v Pinella, 137 Misc 2d 701, affd 143 AD2d 1072, Iv denied 73 NY2d 925). Concur—Rosenberger, J. P., Ellerin, Williams, Tom and Mazzarelli, JJ.