Opinion
1617
September 23, 2003.
Judgment, Supreme Court, New York County (John Stackhouse, J.), rendered February 15, 2002, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him, as a second felony offender, to a term of 6 years to life, unanimously modified, on the law, to the extent of vacating the second felony offender adjudication and reducing the sentence to 5 years to life, and otherwise affirmed.
Alan Gadlin, for respondent.
Lyssa M. Sampson Pro Se, for defendant-appellant.
Before: Buckley, P.J., Nardelli, Tom, Mazzarelli, Gonzalez, JJ.
As the People concede, defendant was improperly adjudicated a second felony offender. In determining that defendant's Massachusetts conviction was for the equivalent of a New York felony, the sentencing court improperly relied upon factual recitals contained in a different count of the Massachusetts accusatory instrument from the count upon which defendant had actually been convicted (see People v. Muniz, 74 N.Y.2d 464).
Defendant's valid waiver of his right to appeal forecloses review of his suppression claims (People v. Kemp, 94 N.Y.2d 831).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.