PEOPLE v. ROBERTSON

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Darryle ROBERTSON, Defendant-Appellant.

Decided: June 20, 2002

NARDELLI, J.P., ANDRIAS, SAXE, and ROSENBERGER, JJ. Ilsa T. Fleischer, for Respondent. Eugene B. Nathanson, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Herbert Adlerberg, J.), rendered April 12, 2000, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

This appeal has been held in abeyance pending a predicate felony hearing to determine whether defendant's prior Maryland conviction was obtained unconstitutionally due to ineffective assistance of counsel, and whether the Maryland conviction constitutes a felony conviction under CPL 400.21(5).   The hearing has been held and by of the Supreme Court, New York County (Budd Goodman, J.), entered February 14, 2002, the hearing court concluded that defendant's 1992 conviction under Article 27, Section 286(a)(1) of the Annotated Code of Maryland was constitutional, and that such conviction was the equivalent of the felony of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) in New York State.   Accordingly, the hearing court held that defendant had been properly sentenced as a second felony offender based upon his prior conviction in Maryland.   We agree.

 Penal Law § 70.06(1)(b)(i) provides that in order to serve as a predicate felony conviction, an out-of-State conviction must be for an offense which, if committed in New York, would be a felony (People v. Kuey, 83 N.Y.2d 278, 283, 609 N.Y.S.2d 568, 631 N.E.2d 574;  People v. Sailor, 65 N.Y.2d 224, 237, 491 N.Y.S.2d 112, 480 N.E.2d 701, cert. denied 474 U.S. 982, 106 S.Ct. 387, 88 L.Ed.2d 340).   Here, the underlying Maryland offense of criminal possession of a controlled substance with intent to distribute carries with it a sentence of imprisonment in excess of one year, as does Penal Law § 220.16(1), and its elements are equivalent to those of the New York felony (People v. Gonzalez, 61 N.Y.2d 586, 589, 475 N.Y.S.2d 358, 463 N.E.2d 1210;  People v. Jackson, 118 A.D.2d 469, 499 N.Y.S.2d 749, lv. denied 67 N.Y.2d 944, 502 N.Y.S.2d 1037, 494 N.E.2d 122).

 Moreover, a review of the record belies defendant's claim of ineffective assistance of counsel (People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Lugo, 291 A.D.2d 359, 739 N.Y.S.2d 32), as the evidence clearly demonstrates that defendant entered into his Maryland plea knowingly, voluntarily and intelligently;  that he fully acknowledged that he was pleading guilty to distribution, and not the mere possession, of cocaine;  and that such crime carried a maximum penalty of twenty years in prison.   Indeed, it was only by virtue of the negotiated plea that defendant was sentenced to only one year in prison.

 Finally, since defendant's use of an alias and passive misrepresentations concealed his prior conviction in Maryland, the sentencing court, upon revelation of defendant's true status, properly revoked its promise of a sentence available only to a first felony offender and properly refused to allow defendant to withdraw his plea (People v. Chance, 254 A.D.2d 115, 679 N.Y.S.2d 289;  People v. Smith, 223 A.D.2d 465, 637 N.Y.S.2d 61, lv. denied 88 N.Y.2d 854, 644 N.Y.S.2d 700, 667 N.E.2d 350).