| People v Ortiz |
| 2017 NY Slip Op 08043 [155 AD3d 1241] |
| November 16, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Luis Ortiz,Appellant. |
Andrew Kossover, Public Defender, Kingston (Michael K. Gould of counsel), forappellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered October 24, 2014, convicting defendant upon his plea of guilty of the crime of rape inthe first degree.
Defendant was charged in an indictment with numerous crimes arising from an incident inwhich he engaged in forcible sexual intercourse with an 80-year-old woman. In satisfactionthereof, he pleaded guilty to rape in the first degree and waived his right to appeal. Under theterms of the plea agreement, he was to be sentenced to 20 years to life in prison if it wasestablished that he was a persistent violent felony offender. In this regard, a persistent violentfelony offender statement was provided to County Court alleging that defendant had prior felonyconvictions for manslaughter in the first degree and burglary in the first degree. The statementwas given to defense counsel at sentencing and County Court afforded him an opportunity toreview it with defendant. After doing so, defense counsel indicated that there were no objectionsto the statement and defendant admitted that he committed the felonies set forth therein. CountyCourt proceeded to sentence defendant as a persistent violent felony offender to 20 years to lifein prison. He now appeals.
Defendant contends that County Court failed to comply with the procedural requirements setforth in the Criminal Procedure Law in sentencing him as a persistent violent felony offender andthat, consequently, the sentence imposed is illegal. Preliminarily, we note [*2]that although defendant's claim is not precluded by his waiver of theright to appeal, it has not been preserved for our review due to his failure to object at sentencing(see People v Berry, 152 AD3d1080, 1080-1081 [2017]; People vHartfield, 151 AD3d 1116, 1118 [2017], lv denied 29 NY3d 1127 [2017]). Inany event, were we to consider it, we would find it to be without merit. In accordance with CPL400.16 (2), defendant was provided with a predicate felony statement setting forth the priorviolent felonies that he allegedly committed (see CPL 400.15 [2]).[FN*] Although the statement was notprovided to him until sentencing, defendant was advised of his potential persistent violent felonyoffender status during the plea proceedings and was given an opportunity to review the statementwith counsel before the sentence was pronounced. Notably, when County Court inquired whetherdefendant had any objections to the statement, his counsel responded in the negative, anddefendant admitted that he committed the violent felonies listed. In view of the foregoing, if theissue were before us, we would find that there was substantial compliance with the statutoryrequirements (see People v Berry, 152 AD3d at 1081; People v Hartfield, 151AD3d at 1118; see also People vWalton, 101 AD3d 1489, 1490 [2012], lv denied 20 NY3d 1105 [2013]; People v Johnson, 91 AD3d 1115,1115 [2012], lv denied 18 NY3d 959 [2012]).
McCarthy, J.P., Egan Jr., Rose and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant erroneously reliesupon the provisions of CPL 400.20, governing sentencing for persistent felony offenders, insteadof CPL 400.16, which applies to sentencing for persistent violent felony offenders.