PEOPLE v. BELL BRADLEY (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him, upon his plea of guilty, of grand larceny in the third degree (Penal Law § 155.35 [1] ), defendant contends that he was improperly sentenced as a second felony offender because the predicate conviction, i.e., a federal conviction of bank robbery, is not equivalent to any New York felony. Although that contention survives defendant's waiver of the right to appeal (see People v. Lopez, 164 A.D.3d 1625, 1625, 82 N.Y.S.3d 686 [4th Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 587, 121 N.E.3d 214 [2019];  People v. Murdie, 134 A.D.3d 1353, 1354, 21 N.Y.S.3d 762 [3d Dept. 2015] ), defendant failed to preserve it for our review (see People v. Jurgins, 26 N.Y.3d 607, 612, 26 N.Y.S.3d 495, 46 N.E.3d 1048 [2015];  People v. Hall, 149 A.D.3d 1610, 1610, 51 N.Y.S.3d 478 [4th Dept. 2017] ). Furthermore, although there is a “narrow exception to [the] preservation rule permitting appellate review when a sentence's illegality is readily discernable from the ․ record” (People v. Santiago, 22 N.Y.3d 900, 903, 977 N.Y.S.2d 144, 999 N.E.2d 507 [2013] ), this case does not fall within that narrow exception because resolution of the question whether defendant's federal conviction is the equivalent of a New York felony requires us to “resort to outside facts, documentation or foreign statutes” (People v. Samms, 95 N.Y.2d 52, 57, 710 N.Y.S.2d 310, 731 N.E.2d 1118 [2000];  see People v. Diaz, 115 A.D.3d 483, 484, 981 N.Y.S.2d 422 [1st Dept. 2014], lv denied 23 N.Y.3d 1036, 993 N.Y.S.2d 249, 17 N.E.3d 504 [2014] ). Inasmuch as “[a] CPL 440.20 motion is the proper vehicle for raising a challenge to a sentence as ‘unauthorized, illegally imposed or otherwise invalid as a matter of law’ (CPL 440.20[1] ), and a determination of second felony offender status is an aspect of the sentence” (Jurgins, 26 N.Y.3d at 612, 26 N.Y.S.3d 495, 46 N.E.3d 1048), we decline to exercise our power to review defendant's unpreserved contention in the interest of justice.