Majority
p. 362The People of the State of New York, Respondent, v Domingo Rexach, Appellant. [633 NYS2d 131]
—Judgment, Supreme Court, Bronx County (Frank Diaz, J.), rendered December 13, 1993, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 41/2 to 9 years, unanimously affirmed.
We reject defendant’s claim that he was improperly adjudicated a second felony offender because his prior Federal conviction for distributing cocaine within 1,000 feet of a public school was based on a statute ( 21 USC § 841 [a] [1]; former § 845a [a], now § 860 [a]) that is broader than its New York counterpart criminalizing the sale of a controlled substance in or near
p. 363
school grounds (Penal Law §§ 220.44, 220.00 [14]). This Court has specifically declined to accept the argument that 21 USC § 841 (a) (1) may not be used to enhance sentence because its requirement of "distribution” is not analogous to the State’s requirement of a "sale” (People v Vasquez, 167 AD2d 236 , Iv denied 77 NY2d 912 ), or because, unlike its New York "sale” counterparts, it is not subject to the defense of agency (People v Pinella, 137 Misc 2d 701 , affd 143 AD2d 1072 , Iv denied 73 NY2d 925 ). Concur—Rosenberger, J. P., Ellerin, Williams, Tom and Mazzarelli, JJ.
Cases cited
- People v. Felton 77 NY2d 912 p. 363
- People v. Pinella 137 Misc 2d 701 p. 363