People v Wadiak

People v Wadiak 2013 NY Slip Op 02653 Decided on April 18, 2013 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 April 18, 2013
Tom, J.P., Sweeny, Saxe, Román, Feinman, JJ.
9824 4307/09

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

v

Robert Wadiak, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Adrienne
Gantt of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila L.
Bautista of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered September 29, 2010, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of two years, with two years' postrelease supervision, unanimously affirmed.

Defendant was properly sentenced as a second felony offender. A review of the Pennsylvania accusatory instrument establishes that his conviction in that state was for the equivalent of the New York felony of grand larceny in the fourth degree (see People v Gonzalez, 61 NY2d 586, 590-591 [1984]; People v Tyler, 4 AD3d 183 [1st Dept 2004], lv denied 2 NY3d 808 [2004]). The theft of over $2000 is an essential element of defendant's Pennsylvania felony, and his present argument to the contrary is unavailing.

We perceive no basis for reducing the term of postrelease supervision.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 18, 2013

CLERK