Summary
In People v Rexach (220 AD2d 362), the Court rejected the same contention based on the Federal statute and also rejected the claim that the New York statute was broader than the Federal statute because the Federal statute was not subject to an agency defense.
Summary of this case from People v. WilsonOpinion
October 31, 1995
Appeal from the Supreme Court, Bronx County (Frank Diaz, J.).
We reject defendant's claim that he was improperly adjudicated a second felony offender because his prior Federal conviction for distributing cocaine within 1,000 feet of a public school was based on a statute ( 21 U.S.C. § 841 [a] [1]; former § 845a [a], now § 860 [a]) that is broader than its New York counterpart criminalizing the sale of a controlled substance in or near school grounds (Penal Law § 220.44, 220.00 Penal [14]). This Court has specifically declined to accept the argument that 21 U.S.C. § 841 (a) (1) may not be used to enhance sentence because its requirement of "distribution" is not analogous to the State's requirement of a "sale" ( People v. Vasquez, 167 A.D.2d 236, lv denied 77 N.Y.2d 912), or because, unlike its New York "sale" counterparts, it is not subject to the defense of agency ( People v. Pinella, 137 Misc.2d 701, affd 143 A.D.2d 1072, lv denied 73 N.Y.2d 925).
Concur — Rosenberger, J.P., Ellerin, Williams, Tom and Mazzarelli, JJ.