People v Brown

People v Brown 2007 NY Slip Op 02484 [38 AD3d 393] March 22, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

The People of the State of New York, Respondent,
v
DaShawn Brown, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Proskauer Rose LLP, New York (Jennifer E. Burns of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Judgment of resentence, Supreme Court, New York County (Bruce Allen, J.), rendered September 30, 2005, resentencing defendant, upon his conviction, after a jury trial, of criminal possession of a controlled substance in the first degree, as a second felony offender, to a term of 12 years, unanimously affirmed.

At resentencing, defendant was properly adjudicated a second felony offender since he was convicted in New Jersey of crimes that are equivalent to New York felonies. Defendant claims, for the first time on appeal, that the court relied on improper documents in making that determination. This claim requires preservation because it is a challenge to a presentencing procedure, and, if timely raised, the People could have met it by furnishing different documents (see People v Samms, 95 NY2d 52, 56-58 [2000]). Accordingly, we decline to review this claim in the interest of justice. Were we to review it, we would find that the record, including the New Jersey judgment of conviction and defendant's concessions before the resentencing court concerning the nature of his New Jersey convictions, establishes the requisite equivalence (see People v Williams, 7 AD3d 344 [2004], lv denied 3 NY3d 663 [2004]). Concur—Friedman, J.P., Nardelli, Sweeny, McGuire and Malone, JJ.