Opinion
948 KA 15–01992
09-28-2018
The PEOPLE of the State of New York, Respondent, v. Rufino LOPEZ, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree ( Penal Law § 130.65[2] ), defendant contends that he was improperly sentenced as a second felony offender inasmuch as the predicate conviction, i.e., burglary in the third degree in the State of Connecticut, is not equivalent to any New York felony. While that contention survives defendant's waiver of the right to appeal (see People v. Murdie, 134 A.D.3d 1353, 1354, 21 N.Y.S.3d 762 [3d Dept. 2015] ; People v. Iliff, 96 A.D.3d 974, 975, 946 N.Y.S.2d 626 [2d Dept. 2012] ), defendant failed to preserve it for our review (see People v. Jurgins, 26 N.Y.3d 607, 612, 26 N.Y.S.3d 495, 46 N.E.3d 1048 [2015] ; People v. Hall, 149 A.D.3d 1610, 1610, 51 N.Y.S.3d 478 [4th Dept. 2017] ). Although there is a "narrow exception to [the] preservation rule permitting appellate review when a sentence's illegality is readily discernible from the ... record" ( People v. Santiago, 22 N.Y.3d 900, 903, 977 N.Y.S.2d 144, 999 N.E.2d 507 [2013] ; see People v. Sumter, 157 A.D.3d 1125, 1126, 70 N.Y.S.3d 253 [3d Dept. 2018] ), this case does not fall within that narrow exception because resolution of the question whether the Connecticut conviction is the equivalent of a New York felony requires "resort to outside facts, documentation or foreign statutes" ( People v. Samms, 95 N.Y.2d 52, 57, 710 N.Y.S.2d 310, 731 N.E.2d 1118 [2000] ; see People v. Diaz, 115 A.D.3d 483, 484, 981 N.Y.S.2d 422 [1st Dept. 2014], lv denied 23 N.Y.3d 1036, 993 N.Y.S.2d 249, 17 N.E.3d 504 [2014] ). Inasmuch as "[a] CPL 440.20 motion is the proper vehicle for raising a challenge to a sentence as ‘unauthorized, illegally imposed or otherwise invalid as a matter of law’ ( CPL 440.20[1] ), and a determination of second felony offender status is an aspect of the sentence" ( Jurgins, 26 N.Y.3d at 612, 26 N.Y.S.3d 495, 46 N.E.3d 1048 ), we decline to exercise our power to review defendant's contention in the interest of justice.