Opinion
February 16, 2000
Appeal from Judgment of Supreme Court, Erie County, Buscaglia, J. — Attempted Criminal Sale Controlled Substance, 3rd Degree.)
PRESENT: PINE, J. P., HAYES, SCUDDER AND LAWTON, JJ.
Judgment unanimously affirmed. Memorandum: Supreme Court properly determined that the People proved beyond a reasonable doubt that defendant was subject to sentencing as a second felony offender ( see, CPL 400.21; [7] [a]). Defendant pleaded guilty to two counts of attempted criminal sale of a controlled substance in the third degree (Penal Law § 110.00, 220.39 Penal [1]) in connection with the sales of heroin to two undercover police officers on October 21, 1997. The People proved beyond a reasonable doubt that defendant was convicted of a felony within 10 years preceding those offenses ( see, Penal Law § 70.06 [a], [b] [i] [iv]). Defendant was convicted of criminal possession of stolen property in the fourth degree (Penal Law § 165.45) in Bronx County on April 28, 1987. The 10-year period was tolled during defendant's incarceration in New Jersey from July 2, 1993 through December 12, 1994. Contrary to defendant's contention, the court properly determined that certified records of the New Jersey Department of Corrections, People's exhibit No. 5C, established defendant's period of incarceration.
Defendant's contention that the court erred in imposing restitution of $30 to be paid to the City of Buffalo Police Department is not preserved for our review ( see, CPL 470.05; People v. Benson, 176 A.D.2d 950), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).