PEOPLE v. SUTTON (2023)

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered November 22, 2016, convicting defendant, upon his plea of guilty, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 11/212 to 3 years, unanimously affirmed.  Order, same court (Abraham L. Clott, J.), entered on or about September 1, 2022, which denied defendant's CPL 440.20 motion to set aside the sentence, unanimously affirmed.

Defendant was properly adjudicated a second felony offender based upon his New Jersey conviction (NJ Stat Ann § 2C:35–5[a][1], [b][3]).  Examination of the New Jersey accusatory instrument is appropriate (see People v. Simmons, 196 A.D.3d 154, 158, 150 N.Y.S.3d 258 [1st Dept. 2021], lv denied 37 N.Y.3d 1099, 156 N.Y.S.3d 775, 178 N.E.3d 422 [2021];  People v. West, 58 A.D.3d 483, 484, 871 N.Y.S.2d 120 [1st Dept. 2009], lv denied 12 N.Y.3d 822, 881 N.Y.S.2d 30, 908 N.E.2d 938 [2009]).  The accusatory instrument reveals that defendant pleaded guilty to “possess[ing] or hav[ing] under his control with intent to distribute a controlled substance, Cocaine or its analogue, contrary to the provisions of N.J.S. 2C:35–5a(1), (b)(3).”  Because defendant's New Jersey conviction is the equivalent of the New York felony of criminal possession of a controlled substance in the third degree (Penal Law § 220.16), the second felony offender adjudication was proper.