| People v Berry |
| 2017 NY Slip Op 05877 [152 AD3d 1080] |
[*1]
| 1 The People of the State of New York,Respondent, v Jason Berry, Appellant. |
Andrew Kossover, Public Defender, Kingston (Michael K. Gould of counsel), forappellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), renderedMarch 27, 2015, convicting defendant upon his plea of guilty of the crime of criminal possessionof a controlled substance in the third degree.
In satisfaction of a five-count indictment, defendant pleaded guilty to criminal possession ofa controlled substance in the third degree and waived his right to appeal. Pursuant to the pleaagreement, County Court sentenced defendant, as a second felony drug offender, to a prison termof eight years with three years of postrelease supervision. Defendant appeals.
We affirm. Defendant's contention on appeal, that he was improperly sentenced as apredicate felony offender, survives his appeal waiver but was not preserved due to his failure toobject at sentencing despite an opportunity to do so (see People v Woods, 147 AD3d 1156, 1157 [2017], lvdenied — NY3d &mdash, 2017 NY Slip Op — [June 14, 2017]; People v Lowell, 126 AD3d 1235,1235 [2015], lv denied 25 NY3d 1167 [2015]).[FN*] Defendant was advised during the pleaallocution that [*2]he was, potentially, a persistent felonyoffender, and thereafter provided with a copy of the predicate felony offender information. Atsentencing, defense counsel affirmed that defendant did not wish to controvert the allegations inthe information and did not have any constitutional or other challenge to the conviction, anddefendant then admitted the conviction. Given these circumstances, we are satisfied that therewas substantial compliance with the applicable requirements and that corrective action in theinterest of justice is not warranted (see CPL 400.21; People v Woods, 147 AD3dat 1157; People v Melton, 136AD3d 1069, 1070 [2016], lv denied 27 NY3d 1002 [2016]; People v Jones, 47 AD3d 1121,1122 [2008], lv denied 10 NY3d 865 [2008]).
McCarthy, J.P., Garry, Egan Jr., Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Where the appellate claim is thatthe sentence is unauthorized and, therefore, illegal, as readily discernible from the face of therecord, preservation is not required (see People v Samms, 95 NY2d 52, 55-58 [2000]; People v Martinez, 130 AD3d1087, 1088 [2015], lv denied 26 NY3d 1010 [2015]). Here, however, defendant'sclaim is to the procedures employed and not whether he qualifies as a predicate offender.