Opinion
5350/11 13261 3439/12 13260
01-26-2016
The PEOPLE of the State of New York, Respondent, v. Herbie BROWN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Rachel T. Goldberg of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David E.A. Crowley of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Rachel T. Goldberg of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David E.A. Crowley of counsel), for respondent.
Opinion
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered September 6, 2012, as amended October 2, 2012, convicting defendant, upon his plea of guilty, of identity theft in the first degree (two counts), grand larceny in the third degree (two counts), criminal possession of stolen property in the third degree (two counts), computer trespass and unlawful possession of personal identification information in the third degree (two counts), and sentencing him, as a second felony offender, to an aggregate term of 3 ½ to 7 years, unanimously affirmed.
Defendant's claim that his out-of-state conviction was not the equivalent of a New York felony is unpreserved because there was neither a timely objection before the sentencing court nor was the issue raised by a CPL 440.20 motion (see People v. Jurgins, ––– N.Y.3d –––, –––N.Y.S.3d ––––, ––– N.E.3d ––––, 2015 N.Y. Slip Op. 09311, 2015 WL 9091962 2015 ). We decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. The foreign statute at issue is equivalent to a New York felony (see Penal Law § 155.003; Matter of Reinaldo O., 250 A.D.2d 502, 673 N.Y.S.2d 417 1st Dept.1998, lv. denied 92 N.Y.2d 809, 678 N.Y.S.2d 595, 700 N.E.2d 1231 1998; People v. Kirnon, 39 A.D.2d 666, 667, 332 N.Y.S.2d 74 1972, affd. 31 N.Y.2d 877, 340 N.Y.S.2d 183, 292 N.E.2d 319 1972; see also People v. Barden, 117 A.D.3d 216, 232–235, 983 N.Y.S.2d 534 1st Dept.2014, lv. granted 24 N.Y.2d 959, 996 N.Y.S.2d 218, 20 N.E.3d 998 2014 ).
The sentence was properly enhanced for defendant's failure to comply with a condition unambiguously set forth by the court (see People v. Cataldo, 39 N.Y.2d 578, 580, 384 N.Y.S.2d 763, 349 N.E.2d 863 1976; People v. Baptiste, 116 A.D.3d 588, 983 N.Y.S.2d 787 1st Dept.2014, lv. denied 24 N.Y.3d 1081, 1 N.Y.S.3d 8, 25 N.E.3d 345 2014 ), and we perceive no basis for reducing the sentence.
We have considered and rejected defendant's remaining claims.
TOM, J.P., RENWICK, MOSKOWITZ, RICHTER, KAPNICK, JJ., concur.