| People v Saddlemire |
| 2008 NY Slip Op 03340 [50 AD3d 1317] |
| April 17, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael H.Saddlemire, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered April 30, 2007, convicting defendant upon his plea of guilty of the crimes of grandlarceny in the fourth degree and criminal contempt in the first degree.
In satisfaction of an indictment and a superior court information, defendant pleaded guilty togrand larceny in the fourth degree and criminal contempt in the first degree. County Courtthereafter sentenced him, as a second felony offender, to 2 to 4 years in prison for bothconvictions, with the sentences to run concurrently. Defendant now appeals.
Defendant contends that his sentence as a second felony offender was illegal because CountyCourt failed to comply with CPL 400.21. At sentencing, however, defendant was aware that hewas to be sentenced as a second felony offender, was given notice of and an opportunity tocontrovert the second felony offender statement, and admitted that he was the person previouslyconvicted of the prior felony. Furthermore, defendant does not challenge the validity of the priorconviction. Therefore, although County Court failed to specifically inquire if he wished tocontrovert any allegations made in the second felony offender statement as required by CPL400.21 (3), we find the omission to be harmless (see People v Flores, 40 AD3d 876, 878[*2][2007], lv denied 9 NY3d 875 [2007]; People v Ladson, 30 AD3d 836,837 [2006], lv denied 7 NY3d 814 [2006]; People v Mann, 258 AD2d 738, 739[1999], lv denied 93 NY2d 900 [1999]).
We also find that as defendant failed to move to withdraw his plea or vacate his judgment ofconviction, his challenge to the factual sufficiency of his plea is not preserved for review (see People v Sanabria, 43 AD3d1228, 1229 [2007], lv denied 9 NY3d 993 [2007]; People v Masters, 36 AD3d 959,960 [2007], lv denied 8 NY3d 925 [2007]). Moreover, as the plea colloquy does not callinto question defendant's guilt or the voluntariness of his plea, the exception to the preservationrule is not applicable (see People vHall, 41 AD3d 1090, 1090 [2007], lv denied 9 NY3d 876 [2007]; People v Campbell, 29 AD3d1083, 1084 [2006], lv denied 7 NY3d 786 [2006]). In any event, we are satisfied thatdefendant's affirmative response to County Court's recitation of the facts during the plea colloquyestablished the elements of criminal contempt in the first degree, although defendant did notpersonally recite the underlying facts (see People v Bagley, 34 AD3d 992, 993 [2006], lv denied 8NY3d 878 [2007]; People vAlexander, 31 AD3d 885, 886 [2006]).
Peters, J.P., Carpinello, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.