PEOPLE v. BELL

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

The PEOPLE of the State of New York, Respondent, v. Brian BELL, Defendant-Appellant.

Decided: March 25, 1999

ROSENBERGER, J.P., TOM, WALLACH and MAZZARELLI, JJ. Annica H. Jin, for Respondent, Theodore S. Green, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered March 18, 1997, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

 Defendant failed to preserve his appellate challenge to his second felony offender status (People v. Smith, 73 N.Y.2d 961, 540 N.Y.S.2d 987, 538 N.E.2d 339), and we decline to review it in the interest of justice.   Were we to review this claim, we would find that defendant was properly adjudicated a second felony offender based upon his New Jersey conviction (N.J. Stat. Annot. § 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 cocaine, not marijuana (see, People v. Searvance, 236 A.D.2d 306, 654 N.Y.S.2d 352, lv. denied 89 N.Y.2d 1041, 659 N.Y.S.2d 871, 681 N.E.2d 1318).   Defendant was not deprived of effective assistance of counsel by his attorney's abandonment of this issue, since pursuit of this issue would have been futile (see, People v. Lane, 60 N.Y.2d 748, 750-751, 469 N.Y.S.2d 663, 457 N.E.2d 769).   We have considered and rejected defendant's additional claims.

MEMORANDUM DECISION.