PEOPLE v. WEST (2009)

Judgment, Supreme Court, New York County (Charles H. Solomon, J. at suppression hearing;  Michael J. Obus, J. at jury trial and sentence), rendered August 23, 2006, convicting defendant of robbery in the first and second degrees and resisting arrest, and sentencing him, as a second felony offender, to an aggregate term of 15 years, and order, same court (Michael J. Obus, J.), entered on or about September 12, 2007, which denied defendant's CPL 440.20 motion to set aside the sentence, unanimously affirmed.

 Defendant's contention that the police improperly searched a closed bag he was wearing at the time of his arrest is unpreserved and we decline to review it in the interest of justice.   We reject defendant's argument that the court “expressly decided” the closed-container issue (CPL 470.05[2] );  on the contrary, it was never litigated or fully developed in testimony, and the court never addressed it (see People v. Turriago, 90 N.Y.2d 77, 83-84, 659 N.Y.S.2d 183, 681 N.E.2d 350 [1997] ).   As an alternative holding, we also reject defendant's claim on the merits because, to the extent the record permits review, it reveals that the search was proper as incident to a lawful arrest (see People v. Smith, 59 N.Y.2d 454, 465 N.Y.S.2d 896, 452 N.E.2d 1224 [1983];  People v. Wylie, 244 A.D.2d 247, 666 N.Y.S.2d 1 [1997], lv. denied 91 N.Y.2d 946, 671 N.Y.S.2d 726, 694 N.E.2d 895 [1998] ).

 Defendant was properly adjudicated a second felony offender based upon his New Jersey conviction (NJ Stat. Ann. § 2C:35-7).   We find that resort to the New Jersey accusatory instrument is appropriate, and that such instrument establishes that the New Jersey crime involved possession of heroin and not marijuana (see People v. Williams, 7 A.D.3d 344, 345, 775 N.Y.S.2d 864 [2004], lv. denied 3 N.Y.3d 663, 782 N.Y.S.2d 705, 816 N.E.2d 578 [2004];  People v. Bell, 259 A.D.2d 429, 687 N.Y.S.2d 136 [1999], lv. denied 93 N.Y.2d 922, 693 N.Y.S.2d 505, 715 N.E.2d 508 [1999] ).

We perceive no basis for reducing the sentence.