PEOPLE v. REXACH

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 U.S.C. § 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 school grounds (Penal Law § 220.44, 220.00 Penal [14]). This Court has specifically declined to accept the argument that 21 U.S.C. § 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 A.D.2d 236, lv denied 77 N.Y.2d 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 A.D.2d 1072, lv denied 73 N.Y.2d 925).

Concur — Rosenberger, J.P., Ellerin, Williams, Tom and Mazzarelli, JJ.