People v Sutton, 2023 NY Slip Op 05696 [221 AD3d 466]

November 14, 2023

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Idris Sutton, Appellant.

Twyla Carter, The Legal Aid Society, New York (Laura Boyd of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Stacie Nadel of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered November 22, 2016, convicting defendant, upon his plea of guilty, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 1 1/2 to 3 years, unanimously affirmed. Order, same court (Abraham L. Clott, J.), entered on or about September 1, 2022, which denied defendant’s CPL 440.20 motion to set aside the sentence, unanimously affirmed.

Defendant was properly adjudicated a second felony offender based upon his New Jersey conviction (NJ Stat Ann § 2C:35-5 [a] [1]; [b] [3]). Examination of the New Jersey accusatory instrument is appropriate ( see People v Simmons , 196 AD3d 154 , 158 [1st Dept 2021], lv denied 37 NY3d 1099 [2021]; People v West , 58 AD3d 483 , 484 [1st Dept 2009], lv denied 12 NY3d 822 [2009]). The accusatory instrument reveals that defendant pleaded guilty to “possess[ing] or hav[ing] under his control with intent to distribute a controlled substance, Cocaine or its analogue, contrary to the provisions of N.J.S. 2C:35-5a (1), (b) (3).” Because defendant’s New Jersey conviction is the equivalent of the New York felony of criminal possession of a controlled substance in the third degree (Penal Law § 220.16), the second felony offender adjudication was proper. Concur—Manzanet-Daniels, J.P., Oing, Scarpulla, Rodriguez, Higgitt, JJ..