73 N.Y.2d 961 (1989)
A defendant must timely challenge the allegations in a predicate felony statement to preserve the issue of whether a prior out-of-state conviction is equivalent to a New York felony for second felony offender sentencing.
Summary
Benjamin Kou Smith appealed his sentence as a second felony offender. The Court of Appeals affirmed the Appellate Division’s order, holding that Smith failed to preserve the argument that his prior federal kidnapping conviction was not equivalent to a New York felony. Smith did not properly controvert the allegations in the predicate felony statement as required by CPL 400.21(3). A concurring opinion argued the police action of transporting the defendant was supported by probable cause. The majority opinion does not address the legality of the transport.
Facts
The facts of the underlying crime are not stated in the Court of Appeals decision. The only facts relevant to the decision relate to the sentencing proceeding after Smith’s conviction. The prosecution sought to sentence Smith as a second felony offender based on a prior federal conviction for kidnapping under 18 U.S.C. § 1201. Smith did not properly challenge the predicate felony statement.
Procedural History
The defendant was convicted and sentenced as a second felony offender. The Appellate Division affirmed the conviction. The defendant appealed to the New York Court of Appeals, arguing that the sentencing was improper because his prior federal conviction did not qualify as a predicate felony in New York.
Issue(s)
Whether the defendant preserved the issue of whether his prior federal kidnapping conviction is equivalent to a felony conviction in New York for purposes of second felony offender sentencing, when he failed to timely controvert the allegations in the predicate felony statement.
Holding
No, because the defendant failed to timely raise the issue of whether he was properly sentenced as a second felony offender by not controverting the allegations in the predicate felony statement as required by CPL 400.21(3).
Court’s Reasoning
The Court of Appeals held that Smith failed to preserve the issue for review because he did not properly controvert the allegations in the predicate felony statement. CPL 400.21(3) requires a defendant to specify the particular grounds upon which the prior conviction is being challenged. By not raising a timely objection, Smith waived his right to argue that the federal kidnapping conviction was not equivalent to a New York felony.
The court stated: “We would only add that defendant failed to timely raise the issue of whether he was properly sentenced as a second felony offender by not controverting the allegations in the predicate felony statement (CPL 400.21 [3]). Accordingly, any question concerning whether defendant’s prior conviction of kidnapping under 18 USC § 1201 is equivalent to his conviction of a felony in New York has not been preserved for our review.”
Judge Hancock’s concurring opinion disagreed with the Appellate Division’s application of *People v. Hicks*, arguing that the police action of transporting the defendant to the victim’s home for identification without probable cause was improper. However, Judge Hancock concurred in the result because he believed that the circumstances created probable cause justifying the intrusion, although this argument was not raised before the suppression court.