| People v Granan |
| 2008 NY Slip Op 01656 [48 AD3d 975] |
| February 28, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Matthew K.Granan, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the County Court of Chenango County (Daley, J.),rendered August 24, 2006, convicting defendant upon his plea of guilty of five counts of thecrime of burglary in the third degree.
Defendant was charged in a six-count indictment with five counts of burglary in the thirddegree and criminal mischief stemming from his role in numerous burglaries throughoutChenango County between November 10, 2004 and December 16, 2004. In the course of theensuing jury trial on these charges, defendant agreed to plead guilty to all five burglary countswith the express understanding that any sentence he would receive would be capped at 7 to 14years in prison. He waived his right to appeal orally and in writing. Prior to being sentenced,defendant, with the express approval of his attorney, admitted in open court that he hadpreviously been convicted of a felony.[FN*] He was then sentenced as a second felony offender to [*2]3½ to 7 years in prison on each count, with two of the countsto run consecutively and the remaining to run concurrently. He now appeals.
Defendant argues that he was never advised during the plea allocution that he would besentenced as a second felony offender and therefore his decision to plead guilty was not knowing,intelligent or voluntary. His failure to move to withdraw the plea or vacate the judgment ofconviction renders this argument unpreserved for review (see e.g. People v Adams, 26 AD3d 597 [2006], lv denied 7NY3d 751 [2006]). Further, to the extent that defendant made statements during the pleacolloquy that cast doubt on his guilt, "County Court promptly conducted further inquiry toremove any such doubt and to ensure a knowing and voluntary plea on his part" (People v Parara, 46 AD3d 936,937 [2007]; see People v Clavie, 28AD3d 872, 873 [2006]). "Having failed to express, in any way, dissatisfaction with thecourt's remedial action, defendant has waived any further challenge to the allocution, and thus noissue is preserved for our review" (People v Lopez, 71 NY2d 662, 668 [1988] [citationomitted]). In any event, were we to consider each of these unpreserved claims, we would findthem to be without merit since our review of the allocution reveals a knowing, voluntary andintelligent plea.
Finally, we find that defendant waived strict compliance with the statutory requirement thatthe People file the predicate felony conviction statement prior to sentencing. Defense counsel,when specifically asked, had no objection to the time-saving procedure suggested by CountyCourt (see n, supra) and raised no other objection to the court's finding of thisprior conviction (see People v Kennedy, 277 AD2d 814 [2000]), lv denied 96NY2d 760 [2001]; compare People v Kingsbury, 256 AD2d 916 [1998]).
Mercure, J.P., Peters, Rose and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: This was done to eliminate theneed for a brief recess so the People could obtain the second felony offender statement. Therecord does contain a predicate felony statement dated the same day as sentencing (compare People v De Fayette, 16AD3d 708, 710 [2005], lv denied 4 NY3d 885 [2005]; People v Pierre, 8 AD3d 904,906-907 [2004], lv denied 3 NY3d 710 [2004]).