Opinion
7504 Ind. 349/12
10-30-2018
The PEOPLE of the State of New York, Respondent, v. Denarious JENKINS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Rebecca Hausner of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Rebecca Hausner of counsel), for respondent.
Acosta, P.J., Friedman, Kapnick, Webber, Moulton, JJ.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered April 22, 2014, convicting defendant, upon his plea of guilty, of grand larceny in the third degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.
Defendant failed to preserve his claim that none of the three prior New Jersey convictions listed in the predicate felony statement was the equivalent of a New York felony (see People v. Jurgins, 26 N.Y.3d 607, 611–612, 26 N.Y.S.3d 495, 46 N.E.3d 1048 [2015] ), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. One of the New Jersey convictions was under a statute that is facially equivalent to the New York felony of third-degree criminal possession of a controlled substance, which prohibits knowing and unlawful possession of a narcotic drug with intent to sell it ( Penal Law § 220.16[1] ). We have stated that "the unavailability of the agency defense in a foreign jurisdiction has no bearing on whether a foreign felony qualifies as the equivalent of a New York felony" ( People v. Reilly, 273 A.D.2d 143, 143, 711 N.Y.S.2d 381 [1st Dept. 2000], lv denied 95 N.Y.2d 937, 721 N.Y.S.2d 614, 744 N.E.2d 150 [2000] ), and we see no reason to depart from our previous holdings on this subject.
Since at least one of the three New Jersey convictions qualified as a New York predicate felony, we need not decide the predicate status of either of the other two convictions. Furthermore, defendant's counsel was not ineffective in failing to challenge the second felony offender adjudication on this basis (see People v. Medina, 129 A.D.3d 429, 430, 10 N.Y.S.3d 88 [1st Dept. 2015], lv denied 27 N.Y.3d 1136, 39 N.Y.S.3d 118, 61 N.E.3d 517 [2016] ).