People v. Estrada

• Decision Date: 04 November 2010
• Citation: 78 A.D.3d 408,909 N.Y.S.2d 909
• Parties: The PEOPLE of the State of New York, Respondent, v. Rolando ESTRADA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 909

78 A.D.3d 408

The PEOPLE of the State of New York, Respondent,

v.Rolando ESTRADA, Defendant-Appellant.

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

Nov. 4, 2010.

Steven Banks, The Legal Aid Society, New York (Kristina Schwarz of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Aaron Ginandes of counsel), for respondent.

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered October 11, 2006, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 3 1/2 years, unanimously affirmed.

The court properly adjudicated defendant a second felony offender. Since defendant's prior conviction was under a New Jersey statute that covered separate and distinct types of drug crimes, some but not all of which would be felonies in New York, the court properly referred to the indictment in order to determine that defendant was convicted of the equivalent of a New York felony ( see People v. Searvance, 236 A.D.2d 306, 307, 654 N.Y.S.2d 352 [1997], lv. denied 89 N.Y.2d 1041, 659 N.Y.S.2d 871, 681 N.E.2d 1318 [1997] ). Furthermore, as we have repeatedly stated, "the unavailability of the agency defense in a foreign jurisdiction has no bearing on whether a foreign felony qualifies as the equivalent of a New York felony" ( People v. Reilly, 273 A.D.2d 143, 711 N.Y.S.2d 381 [2000], lv. denied 95 N.Y.2d 937, 721 N.Y.S.2d 614, 744 N.E.2d 150 [2000] ).

MAZZARELLI, J.P., FRIEDMAN, CATTERSON, DeGRASSE, MANZANET-DANIELS, JJ., concur.