Opinion
June 22, 2000.
Judgment, Supreme Court, New York County (Harold Rothwax, J., on dismissal motion; Patricia Williams, J., at suppression hearing; Allen Alpert, J., at nonjury trial and sentence), rendered February 14, 1997, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 2 1/2 to 5 years, and order, same court (John Stackhouse, J.), entered on or about March 18, 1999, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, unanimously affirmed.
Brian O'Donoghue, for respondent.
Anders Kaye, for defendant-appellant.
Before: Nardelli, J.P., Ellerin, Wallach, Saxe, Buckley, JJ.
Defendant's suppression motion was properly denied. While we would find that defendant had no expectation of privacy in the area where the drugs were recovered, the record also supports the court's finding that when defendant placed a paper bag containing drugs in a hat that was lying on a wall running along a public sidewalk, and walked away until stopped by the police, defendant abandoned the bag (see, People v. Ramirez-Portoreal, 88 N.Y.2d 99).
Since defendant's prior Federal conviction pursuant to 21 U.S.C. § 841(a)(1) is analogous to a New York felony, defendant was properly adjudicated a second felony offender. We continue to adhere to our previous holdings 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 (see, People v. Roach, 255 A.D.2d 164, lv denied 92 N.Y.2d 1053; People v. Rexach, 220 A.D.2d 362, lv denied 87 N.Y.2d 924). While the Federal statute encompasses marijuana offenses that would not be felonies in New York, the court properly resorted to the accusatory instrument to determine that defendant's Federal conviction did not involve marijuana (see, People v. Gonzalez, 61 N.Y.2d 586).
Defendant's motion to dismiss the indictment pursuant to CPL § 190.50[c] was properly denied as untimely. Nothing prevented defendant from making a timely motion. Instead of making such a motion, defendant chose to plead guilty, and made no motion until months later, after he had withdrawn his plea.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.