People v. Perez

Jan 13, 2000
Versions:268 A.D.2d 688
701 N.Y.S.2d 493
2000 N.Y. App. Div. LEXIS 239

—Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered September 28, 1998, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Pursuant to a plea bargain, defendant entered a plea of guilty to a reduced charge of attempted promoting prison contraband in the first degree and was sentenced as a second felony offender to a prison term of IV2 to 3 years, to be served consecutively to the sentence he was currently serving. We *689reject defendant’s claim that he was improperly sentenced as a second felony offender. Notably, the record indicates that the People filed a CPL 400.21 statement alleging that defendant had previously been convicted within this State of murder in the second degree, which constituted a predicate felony. Defendant, who was represented by counsel, clearly admitted the prior conviction and indicated that he understood that he was pleading guilty to the instant crime as a second felony offender.

Although it was mentioned by defendant and his counsel that defendant had a pending CPL article 440 motion relating to the murder conviction, defendant raised no constitutional or other challenge to County Court’s consideration of his prior conviction and, at the time of sentencing, made no objection to being sentenced as a second felony offender (see, People v Chrysler, 260 AD2d 945). Thus, defendant was given sufficient notice of and an opportunity to controvert the allegations made in the second felony offender statement (see, People v Bouyea, 64 NY2d 1140, 1142) and we find that there was substantial compliance with CPL 400.21 (see, People v Mann, 258 AD2d 738, lv denied 93 NY2d 900; People v Polanco, 232 AD2d 674, 675).

Mercure, J. P., Crew III, Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed.