Opinion
No. 3528.
November 4, 2010.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered October 11, 2006, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 3½ years, unanimously affirmed.
Steven Banks, The Legal Aid Society, New York (Kristina Schwarz of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Aaron Ginandes of counsel), for respondent.
Before: Concur — Mazzarelli, J.P., Friedman, Catterson, DeGrasse and Manzanet-Daniels, JJ.
The court properly adjudicated defendant a second felony offender. Since defendant's prior conviction was under a New Jersey statute that covered separate and distinct types of drug crimes, some but not all of which would be felonies in New York, the court properly referred to the indictment in order to determine that defendant was convicted of the equivalent of a New York felony ( see People v Searvance, 236 AD2d 306, 307, lv denied 89 NY2d 1041). Furthermore, as we have repeatedly stated, "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 AD2d 143, 143, lv denied 95 NY2d 937).