Opinion
June 16, 1998
Appeal from the Supreme Court, New York County (Edwin Torres, J.).
The court properly sentenced defendant as a second felony offender. Defendant was not entitled to a hearing pursuant to CPL 400.21 (5) since he did not controvert the allegations in the predicate felony statement (CPL 400.21; see, People v. Gonzalez, 108 A.D.2d 622, 623-624). In any event, the court properly rejected defendant's challenges to the sufficiency of the documentation provided by the People with respect to the prior conviction. Defendant's Virginia conviction for distribution of a controlled substance was analogous to criminal sale of a controlled substance under New York law, and the availability of defenses is irrelevant ( People v. Searvance, 236 A.D.2d 306, lv denied 89 N.Y.2d 1041; People v. Rexach, 220 A.D.2d 362, lv denied 87 N.Y.2d 924). The court properly relied on the accusatory instrument since the Virginia statute (Va Code Annot § 18.2-248 [A]) that defendant violated renders criminal several acts which, if committed in New York, would not all be felonies ( see, People v. Gonzalez, 61 N.Y.2d 586). We have reviewed defendant's remaining arguments and find them to be without merit.
Concur — Sullivan, J. P., Rosenberger, Rubin, Williams and Mazzarelli, JJ.