Opinion
May 2, 1994
Appeal from the Supreme Court, Kings County (Grajales, J.).
Ordered that the judgment is affirmed.
The defendant's assertion that he was improperly sentenced as a prior felony offender based upon his Texas conviction for "possession with intent to deliver" a controlled substance is without merit. An examination of the elements of the Texas felony of which the defendant was convicted clearly demonstrates that it is analogous to the New York felonies of criminal sale of a controlled substance in the fifth degree and criminal possession of a controlled substance in the fifth degree (see, Penal Law § 220.06; § 220.31; People v. Muniz, 74 N.Y.2d 464, 467-468; People v. Pinella, 137 Misc.2d 701, affd 143 A.D.2d 1072).
In the case at bar, where the defendant was warned that he would be subject to an enhanced sentence if it was revealed that he had a prior conviction, the sentencing court was under no obligation to offer the defendant the option of withdrawing his plea (see, People v. Mason, 67 A.D.2d 747, affd 48 N.Y.2d 896; People v. Raife, 146 A.D.2d 652; People v. Atkinson, 127 A.D.2d 841; cf., People v. Powell, 105 A.D.2d 761).
We have examined the defendant's remaining contentions, including his contention that the sentence was excessive, and find them to be without merit. Sullivan, J.P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.