People v. Tantau

143 A.D.2d 954, 534 N.Y.S.2d 182, 1988 N.Y. App. Div. LEXIS 10303

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 1988
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered June 17, 1987, convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and sentencing him, as a second felony offender, to an indeterminate term of six years’ to life imprisonment.

Ordered that the judgment is affirmed.

The defendant was adjudicated a second felony offender based upon his conviction in Pennsylvania for robbery. The defendant now argues for the first time on appeal that a comparison of the analogous statutes indicates that the elements are not the same. However, such claim was not raised at the hearing and thus is unpreserved for appellate review (see, People v Oliver, 63 NY2d 973; People v Alston, 134 AD2d 433; People v Morales, 143 AD2d 949 [decided herewith]).

In any event, the defendant was properly adjudicated a second felony offender because an examination of the relevant statutes shows that the elements are equivalent (compare, 18 Pa Cons Stat Annot § 3701 [a] [1] [ii]; § 3921 [a]; § 3901, with Penal Law § 160.00). Mollen, P. J., Brown, Kunzeman, Weinstein and Hooper, JJ., concur.