| People v Ellis |
| 2009 NY Slip Op 01882 [60 AD3d 1197] |
| March 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Lamar Ellis,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered April17, 2006, convicting defendant upon his plea of guilty of the crime of criminal sale of acontrolled substance in the fifth degree.
Defendant pleaded guilty to criminal sale of a controlled substance in the fifth degree andwas sentenced, in accordance with a plea agreement, as a second felony offender to a three-yearprison term. The basis for sentencing defendant as a second felony offender was a February 1993conviction of reckless endangerment in the first degree, which he admitted. On appeal, defendantclaims that he was illegally sentenced as a second felony offender because neither the predicatefelony statement filed by the People nor the sentencing minutes reflects the date he committedhis prior felony or served his four-year period of incarceration.
Defendant correctly states that the second felony offender statement recites that defendantwas previously convicted of reckless endangerment in the first degree in February 1993 withoutreferencing the commission date of the prior offense or defendant's ensuing period ofincarceration. At sentencing, however, defense counsel readily acknowledged that he reviewedthe presentence report, which clearly reflects that defendant was convicted of recklessendangerment in 1993 for a crime committed in September 1992 and that he was incarceratedbetween June 1993 and May 1997. Notably, defense counsel denied that the presentence reportcontained any errors or omissions.
Defense counsel further acknowledged at sentencing that he had received, and reviewed[*2]with defendant, the second felony offender statement and thatdefendant admitted this prior offense. No objection was raised to any omission in the statement,namely, its failure to state the commission date or defendant's incarceration. Furthermore, atsentencing, County Court addressed defendant himself, specifically inquiring if he was convictedof reckless endangerment in February 1993 and if he was "a predicate offender for purposes ofsentencing." Defendant answered each inquiry in the affirmative.
In our view, the second felony offender statement, coupled with the undisputed facts setforth in the presentence report and all answers to County Court's inquires by both defensecounsel and defendant, establish that defendant had been convicted of a felony offense within therelevant statutory period as tolled by an intervening period of incarceration (see People v McDowell, 56 AD3d955 [2008]; see also CPL 400.21 [2]; Penal Law § 70.06 [1] [b] [iv], [v]). Inother words, there being no actual dispute that defendant indeed served nearly four years inprison between June 1993 and May 1997 and that this period of incarceration adequately tolledthe statutory period (compare People vHilts, 25 AD3d 1019 [2006]), defendant's sentence will not be disturbed.
Mercure, J.P., Lahtinen, Kane, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.