People v. Brown

People v Brown (2016 NY Slip Op 00443)

People v Brown

2016 NY Slip Op 00443

Decided on January 26, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 26, 2016
Tom, J.P., Renwick, Moskowitz, Richter, Kapnick, JJ.

5350/11 13261 3439/12 13260

[*1] The People of the State of New York, SCI Respondent,

v

Herbie Brown, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Rachel T. Goldberg of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David E. A. Crowley of counsel), for respondent.

Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered September 6, 2012, as amended October 2, 2012, convicting defendant, upon his plea of guilty, of identity theft in the first degree (two counts), grand larceny in the third degree (two counts), criminal possession of stolen property in the third degree (two counts), computer trespass and unlawful possession of personal identification information in the third degree (two counts), and sentencing him, as a second felony offender, to an aggregate term of 3½ to 7 years, unanimously affirmed.

Defendant's claim that his out-of-state conviction was not the equivalent of a New York felony is unpreserved because there was neither a timely objection before the sentencing court nor was the issue raised by a CPL 440.20 motion (see People v Jurgins, __ NY3d __, 2015 NY Slip Op 09311 [2015]). We decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. The foreign statute at issue is equivalent to a New York felony (see Penal Law § 155.00[3]; Matter of Reinaldo O., 250 AD2d 502 [1st Dept 1998], lv denied 92 NY2d 809 [1998]; People v Kirnon, 39 AD2d 666, 667 [1972], affd 31 NY2d 877 [1972]; see also People v Barden, 117 AD3d 216, 232-235 [1st Dept 2014], lv granted 24 NY2d 959 [2014]).

The sentence was properly enhanced for defendant's failure to comply with a condition unambiguously set forth by the court (see People v Cataldo, 39 NY2d 578, 580 [1976]; People v Baptiste, 116 AD3d 588 [1st Dept 2014], lv denied 24 NY3d 1081 [2014]), and we perceive no basis for reducing the sentence.

We have considered and rejected defendant's remaining claims.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 26, 2016

CLERK