| People v Diaz |
| 2014 NY Slip Op 01548 [115 AD3d 483] |
| March 11, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Gilbert Diaz, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered May20, 2011, as amended May 24, 2011 and May 31, 2011, convicting defendant, upon hisplea of guilty, of four counts of criminal sale of a controlled substance in the thirddegree, and sentencing him, as a second felony drug offender, to concurrent terms of5½ years, unanimously affirmed.
Defendant did not preserve his claim of unreasonable delay in sentencing, and wedecline to review it in the interest of justice. Because defendant never raised this issuebefore the sentencing court, the record is insufficiently developed to permit review ofthis fact-based claim (see People v Kinchen, 60 NY2d 772 [1983]). Furthermore,defendant has not provided the minutes of adjournments that are relevant to this issue(see People v Olivo, 52 NY2d 309, 320 [1981]).
Defendant did not preserve his claim that his Pennsylvania conviction was not theequivalent of a New York felony, and we decline to review it in the interest of justice.We reject defendant's claim that his second felony drug offender adjudication was asentencing error appearing on the face of the record, and thus exempt from preservationrequirements (see generallyPeople v Santiago, 22 NY3d 900, 903 [2013]). While it is undisputed that thePennsylvania offense would not have qualified as the equivalent of a New York felony ifthe analysis were confined to a facial comparison of the statutes' elements, thecircumstances of the case would have required the court to examine the Pennsylvaniaaccusatory instrument. This is because the foreign statute criminalizes discrete acts,namely possession of different drugs (see People v West, 58 AD3d 483, 484 [1st Dept 2009],lv denied 12 NY3d 822 [2009]; compare People v Muniz, 74 NY2d 464,468-469 [1989]). Thus, if defendant's Pennsylvania conviction involved heroin orcocaine rather than marijuana, it clearly would have been the equivalent of a convictionunder Penal Law § 220.16 (1). As a result, the propriety of using the foreignconviction cannot "be determined from the face of the appellate record" (People vSamms, 95 NY2d 52, 57 [2000]).
Defendant's ineffective assistance of counsel claim, relating to counsel's failure tochallenge defendant's predicate felony, is unreviewable on direct appeal because itinvolves [*2]matters not reflected in the record (seePeople v Rivera, 71 NY2d 705, 709 [1988]). Accordingly, since defendant has notmade a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressedon appeal. In the alternative, to the extent the existing record permits review, we find thatdefendant received effective assistance under the state and federal standards (seePeople v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland vWashington, 466 US 668 [1984]).
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P.,Sweeny, DeGrasse, Manzanet-Daniels and Gische, JJ.