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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANKLIN LEWIS, Appellant.

Defendant never raised before the sentencing court his current contention, that the element of distribution of drugs under Virginia law "is broader than the comparable New York element of sale of drugs ( see, Va Code § 18.2-248), 50 that his Virginia conviction lacks equivalency to a New York felony. Therefore, the claim is unpreserved for appellate review ( People v. Smith, 73 N.Y.2d 961, 962-963). We decline to review it in the interest of justice. Were we to review this argument, we would find it to be without merit. The court properly sentenced defendant as a second felony offender. His prior Virginia conviction for possession of cocaine with intent to distribute and distributing cocaine was analogous to criminal possession of a controlled substance in the third degree (Penal Law § 220.16; see, People v. Searvance, 236 A.D.2d 306, 307, lv. denied 89 N.Y.2d 1041; People v. Rexach, 220 A.D.2d 362, lv. denied 87 N.Y.2d 924).

Concur — Milonas, J.P., Rosenberger, Nardelli, Wallach, and Rubin, JJ.

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PEOPLE v. LEWIS
(May 19, 1998)