People v. Yensi

251 A.D.2d 262, 675 N.Y.S.2d 529, 1998 N.Y. App. Div. LEXIS 7793

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1998
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Nicholas lacovetta, J.), rendered November 9, 1995, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 7 to 14 years, unanimously affirmed.

The challenged portions of the People’s summation were responsive to defendant’s summation remarks concerning defendant’s residence and identification, and did not improperly shift the burden of proof to defendant or comment on his failure to testify (see, People v Smith, 82 NY2d 731; People v Burke, 72 NY2d 833, 836).

Defendant’s failure to controvert the allegations in the predicate statement renders his present challenge to his second felony offender status unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court properly sentenced defendant as a second felony offender. In ruling that defendant’s Federal conviction for possession with intent to distribute heroin is analogous to criminal possession of a controlled substance in the third degree, the court properly relied on the accusatory statement since the Federal statute that defendant violated (21 USC § 841 [a] [1]) renders criminal several acts which, if committed in New York, would not all be felonies (see, People v Gonzalez, 61 NY2d 586).

We perceive no abuse of sentencing discretion.

We have reviewed defendant’s remaining arguments and find them to be without merit. Concur — Ellerin, J. P., Tom, Mazzarelli and Saxe, JJ.