| People v Lopez |
| 2018 NY Slip Op 06372 [164 AD3d 1625] |
| September 28, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Rufino Lopez, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedSeptember 23, 2015. The judgment convicted defendant, upon his plea of guilty, of sexual abusein the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of sexualabuse in the first degree (Penal Law § 130.65 [2]), defendant contends that he wasimproperly sentenced as a second felony offender inasmuch as the predicate conviction, i.e.,burglary in the third degree in the State of Connecticut, is not equivalent to any New Yorkfelony. While that contention survives defendant's waiver of the right to appeal (see People v Murdie, 134 AD3d1353, 1354 [3d Dept 2015]; Peoplev Iliff, 96 AD3d 974, 975 [2d Dept 2012]), defendant failed to preserve it for our review(see People v Jurgins, 26 NY3d607, 612 [2015]; People v Hall,149 AD3d 1610, 1610 [4th Dept 2017]). Although there is a "narrow exception to [the]preservation rule permitting appellate review when a sentence's illegality is readily discerniblefrom the . . . record" (People v Santiago, 22 NY3d 900, 903 [2013]; see People v Sumter, 157 AD3d1125, 1126 [3d Dept 2018]), this case does not fall within that narrow exception becauseresolution of the question whether the Connecticut conviction is the equivalent of a New Yorkfelony requires "resort to outside facts, documentation or foreign statutes" (People vSamms, 95 NY2d 52, 57 [2000]; seePeople v Diaz, 115 AD3d 483, 484 [1st Dept 2014], lv denied 23 NY3d 1036[2014]). Inasmuch as "[a] CPL 440.20 motion is the proper vehicle for raising a challenge to asentence as 'unauthorized, illegally imposed or otherwise invalid as a matter of law' (CPL 440.20[1]), and a determination of second felony offender status is an aspect of the sentence"(Jurgins, 26 NY3d at 612), we decline to exercise our power to review defendant'scontention in the interest of justice. Present—Whalen, P.J., Smith, DeJoseph, Troutmanand Winslow, JJ.