Opinion
March 25, 1999
Appeal from the Supreme Court, New York County (Bruce Allen, J.).
Defendant failed to preserve his appellate challenge to his second felony offender status (People v. Smith, 73 N.Y.2d 961), and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant was properly adjudicated a second felony offender based upon his New Jersey conviction (NJ Stat Annot § 2C:35-7). We find that resort to the New Jersey accusatory instrument is appropriate, and that such instrument establishes that the New Jersey crime involved possession of cocaine, not marihuana (see, People v. Searvance, 236 A.D.2d 306, lv denied 89 N.Y.2d 1041). Defendant was not deprived of effective assistance of counsel by his attorney's abandonment of this issue, since pursuit of this issue would have been futile (see, People v. Lane, 60 N.Y.2d 748, 750-751). We have considered and rejected defendant's additional claims.
Concur — Rosenberger, J. P., Tom, Wallach and Mazzarelli, JJ.