| People v Glynn |
| 2010 NY Slip Op 03191 [72 AD3d 1351] |
| April 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v John Glynn,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered April 23, 2009, convicting defendant upon his plea of guilty of the crime of burglary inthe third degree.
In March 2009, defendant pleaded guilty to a superior court information charging him withburglary in the third degree in full satisfaction of a pending indictment, as well as certainuncharged criminal matters in Albany County, waived his right to appeal and thereafter wassentenced as a second felony offender to a prison term of 3 to 6 years. Defendant now appeals,contending that his waiver of the right to appeal was involuntary and that his sentence as asecond felony offender was illegal because County Court failed to comply with the requirementsof CPL 400.21.
We affirm. Contrary to the People's assertion, defendant's CPL 400.21 claim implicates thelegality of his sentence and, therefore, survives even a valid waiver of the right to appeal (see People v Ellis, 53 AD3d 776,777 [2008]).[FN*]However, defendant's failure to object at sentencing [*2]rendersthis issue unpreserved for our review (see People v Atkinson, 58 AD3d 943, 944 [2009];People v McDowell, 56 AD3d955 [2008]). In any event, the sentencing minutes indicate that defendant, who knew that hewas being sentenced as a second felony offender, was provided with a copy of the predicatefelony statement, afforded an opportunity to review that statement and confer with counsel,admitted that he was the individual previously convicted of the predicate felony and failed tocontest the validity of the prior conviction. Under such circumstances, we find that there wassubstantial compliance with the statutory requirements of CPL 400.21 (see People vEllis, 53 AD3d at 777) and deem any omissions by County Court to be harmless (seePeople v Atkinson, 58 AD3d at 944; People v Saddlemire, 50 AD3d 1317 [2008]).
Mercure, J.P., Peters, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Our review of the plea colloquy,wherein County Court explained the import of the appeal waiver to defendant and confirmed thatdefendant understood the separate and distinct right that he was forfeiting, satisfies us thatdefendant's waiver was knowing, intelligent and voluntary (see People v Jeske, 55 AD3d 1057, 1057-1058 [2008], lvdenied 11 NY3d 898 [2008]; People v Vallance, 49 AD3d 917, 918 [2008], lv denied 10NY3d 845 [2008]). Further, although it does not appear in the record on appeal and apparentlycannot now be located, the plea minutes reflect that defendant, after conferring with counsel,also executed a written waiver of the right to appeal (see People v Romano, 45 AD3d 910, 914 [2007], lv denied10 NY3d 770 [2008]).