Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered September 17, 2004. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and criminal possession of a controlled substance in the third degree (§ 220.16 [1]). Defendant failed to preserve for our review his contention that Supreme Court erred in sentencing him as a second felony offender based on his conviction of a crime in Florida. In any event, that contention lacks merit. Penal Law § 70.06 (1) (a) provides in relevant part that a second felony offender is “a person . . . who stands convicted of a felony . . . after having previously been subjected to one or more predicate felony convictions” and, in determining whether a foreign crime is equivalent to a New York felony and thus constitutes a predicate felony conviction, “the court must examine the elements of the foreign statute and compare them to an analogous Penal Law felony, for ‘[i]t is the statute upon which the indictment was drawn that necessarily defines and measures the crime’ ” (People v Gonzalez, 61 NY2d 586, 589 [1984]). Here, defendant’s presentence report indicated that in 1995 defendant was convicted in Florida of a third-degree felony that makes it “unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance” (Fla Stat Ann § 893.13 [1] [a]). “[G]uilty knowledge” is an element of that crime (Chicone v State, 684 So 2d 736, 738 [Fla 1996]). We thus conclude that the predicate Florida felony is the equivalent of two New York felonies, i.e., criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) and criminal sale of a controlled substance in the third degree (§ 220.39 [1]).
The sentence is not unduly harsh or severe. We have considered defendant’s remaining contentions and conclude that they are without merit. Present—Gorski, J.P., Martoche, Smith, Centra and Green, JJ.