Opinion
2014-03-11
The PEOPLE of the State of New York, Respondent, v. Gilbert DIAZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, DeGRASSE, MANZANET–DANIELS, GISCHE, JJ.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered May 20, 2011, as amended May 24, 2011 and May 31, 2011, convicting defendant, upon his plea of guilty, of four counts of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to concurrent terms of 5 1/2 years, unanimously affirmed.
Defendant did not preserve his claim of unreasonable delay in sentencing, and we decline to review it in the interest of justice. Because defendant never raised this issue before the sentencing court, the record is insufficiently developed to permit review of this fact-based claim ( see People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983] ). Furthermore, defendant has not provided the minutes of adjournments that are relevant to this issue ( see People v. Olivo, 52 N.Y.2d 309, 320, 438 N.Y.S.2d 242, 420 N.E.2d 40 [1981] ).
Defendant did not preserve his claim that his Pennsylvania conviction was not the equivalent of a New York felony, and we decline to review it in the interest of justice. We reject defendant's claim that his second felony drug offender adjudication was a sentencing error appearing on the face of the record, and thus exempt from preservation requirements ( see generally People v. Santiago, 22 N.Y.3d 900, 903, 977 N.Y.S.2d 144, 999 N.E.2d 507 [2013] ). While it is undisputed that the Pennsylvania offense would not have qualified as the equivalent of a New York felony if the analysis were confined to a facial comparison of the statutes' elements, the circumstances of the case would have required the court to examine the Pennsylvania accusatory instrument. This is because the foreign statute criminalizes discrete acts, namely possession of different drugs ( see People v. West, 58 A.D.3d 483, 484, 871 N.Y.S.2d 120 [1st Dept. 2009], lv. denied12 N.Y.3d 822, 881 N.Y.S.2d 30, 908 N.E.2d 938 [2009];compare People v. Muniz, 74 N.Y.2d 464, 468–469, 548 N.Y.S.2d 633, 547 N.E.2d 1160 [1989] ). Thus, if defendant's Pennsylvania conviction involved heroin or cocaine rather than marijuana, it clearly would have been the equivalent of a conviction under Penal Law § 220.16(1). As a result, the propriety of using the foreign conviction cannot “be determined from the face of the appellate record” ( People v. Samms, 95 N.Y.2d 52, 57, 710 N.Y.S.2d 310, 731 N.E.2d 1118 [2000] ).
Defendant's ineffective assistance of counsel claim, relating to counsel's failure to challenge defendant's predicate felony, is unreviewable on direct appeal because it involves matters not reflected in the record ( see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards ( see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
We perceive no basis for reducing the sentence.