Opinion
May 15, 2001.
Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered June 29, 1998, convicting defendant, after a jury trial, of attempted assault in the second degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, to be served concurrently with a 1 year term for violation of probation, unanimously affirmed.
Mary B. McGarvey-Depuy, for respondent.
Joan P. Sullivan, for defendant-appellant.
Before: Rosenberger, J.P., Mazzarelli, Andrias, Buckley, Friedman, JJ.
The court properly relied on defendant's prior California burglary conviction to enhance his sentence herein. Although the elements of burglary in California differ from those required by the New York statute, Penal Law § 70.10(b) does not require the out-of-State felony to consist of the same elements as the crime in New York; it only requires that there be an imposition of a sentence of more than one year (People v. Parker, 41 N.Y.2d 21; People v. Wright, 50 A.D.2d 729; see also, Griffin v. Mann, 156 F.3d 288 [2nd Cir 1998]). The record fails to support defendant's contention that the court was predisposed to sentencing him as a persistent felony offender, and such sentencing was a proper exercise of discretion given defendant's extensive criminal record.
To the extent the existing record permits review, we find that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714). Defendant's ineffective assistance claim rests upon matters dehors the record concerning advice given to him by his attorney, and "[w]ithout the benefit of additional facts that might have been developed after an appropriate post-conviction motion," we find defendant's claim to be unavailing (People v. Denny, 95 N.Y.2d 921, 923).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.