| People v Swan |
| 2009 NY Slip Op 02158 [60 AD3d 1395] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v George Swan,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Jeffrey R. Merrill, A.J.), renderedOctober 30, 2007. The judgment convicted defendant, upon his plea of guilty, of criminalmischief in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of criminal mischief in the third degree (Penal Law § 145.05 [2]). We reject the contentionof defendant that County Court failed to comply with the procedural requirements foradjudicating him a second felony offender pursuant to CPL 400.21. Even assuming, arguendo,that the People failed to file the predicate felony statement prior to sentencing (see CPL400.21 [2]), we conclude that defendant was properly afforded notice of the predicate felonyinasmuch as the record establishes that he received the predicate felony statement before he wassentenced (see generally People v Sampson, 30 AD3d 623 [2006], lv denied 7NY3d 817 [2006]). Furthermore, although the court failed to ask defendant at sentencing if hewished to controvert his second felony offender status pursuant to CPL 400.21 (3), defendanthad contested his status at a prior hearing and raised the same contentions concerning his statusin a written motion to vacate his plea. We conclude on the record before us that the courtsubstantially complied with the requirements of CPL 400.21 (see People v Mateo, 53AD3d 1111, 1112 [2008], lv denied 11 NY3d 791 [2008]; People v Beu, 24AD3d 1257 [2005], lv denied 6 NY3d 809 [2006]; see also Sampson, 30 AD3d623 [2006]). Present—Scudder, P.J., Smith, Centra, Fahey and Pine, JJ.