| People v West |
| 2009 NY Slip Op 00119 [58 AD3d 483] |
| January 15, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v HarryWest, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Melissa Pennington of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J., at suppressionhearing; Michael J. Obus, J., at jury trial and sentence), rendered August 23, 2006, convictingdefendant of robbery in the first and second degrees and resisting arrest, and sentencing him, as asecond felony offender, to an aggregate term of 15 years, and order, same court (Michael J.Obus, J.), entered on or about September 12, 2007, which denied defendant's CPL 440.20 motionto set aside the sentence, unanimously affirmed.
Defendant's contention that the police improperly searched a closed bag he was wearing atthe time of his arrest is unpreserved and we decline to review it in the interest of justice. Wereject defendant's argument that the court "expressly decided" the closed-container issue (CPL470.05 [2]); on the contrary, it was never litigated or fully developed in testimony, and the courtnever addressed it (see People v Turriago, 90 NY2d 77, 83-84 [1997]). As an alternativeholding, we also reject defendant's claim on the merits because, to the extent the record permitsreview, it reveals that the search was proper as incident to a lawful arrest (see People vSmith, 59 NY2d 454 [1983]; People v Wylie, 244 AD2d 247 [1997], lvdenied 91 NY2d 946 [1998]).
Defendant was properly adjudicated a second felony offender based upon his New Jerseyconviction (NJ Stat Ann § 2C:35-7). We find that resort to the New Jersey accusatoryinstrument is appropriate, and that such instrument establishes that the New Jersey crimeinvolved possession of heroin and not marijuana (see People v Williams, 7 AD3d 344, 345 [2004], lv [*2]denied 3 NY3d 663 [2004]; People v Bell, 259 AD2d429 [1999], lv denied 93 NY2d 922 [1999]).
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Gonzalez,Buckley, Sweeny and Catterson, JJ.