Opinion
6073.
May 12, 2005.
Judgment, Supreme Court, New York County (Brenda Soloff, J.), rendered October 14, 2003, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him, as a second felony offender, to a term of three years, unanimously affirmed.
Before: Andrias, J.P., Sullivan, Gonzalez, Sweeny and Catterson, JJ. concur.
Defendant was properly sentenced as a second felony offender. In determining that defendant's West Virginia conviction for delivery of a controlled substance was analogous to a New York felony conviction, the court properly consulted the accusatory instrument since the statute (W Va Code § 60A-4-401 [a] [i]) criminalizes several acts which, if committed in New York, would not all be felonies ( see People v. Gonzalez, 61 NY2d 586, 590-591). In light of that accusatory instrument, defendant's guilty plea in West Virginia necessarily constituted an admission of guilt of the equivalent of a New York felony. Defendant's remaining arguments are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.