| People v Gonzalez |
| 2009 NY Slip Op 03335 [61 AD3d 1428] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v SantoGonzalez, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Supreme Court, Erie County (Joseph S. Forma,J.), entered February 23, 1998. The order denied the motion of defendant pursuant to CPL440.20 to vacate the sentence imposed upon his conviction of, inter alia, attempted murder in thefirst degree.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order that denied his motion pursuant to CPL440.20 seeking to vacate the sentence imposed upon his conviction of, inter alia, attemptedmurder in the first degree (Penal Law §§ 110.00, 125.27 [1] [a] [i]; [b]). Wepreviously affirmed the judgment of conviction upon defendant's appeal therefrom (People vGonzalez, 145 AD2d 900 [1988], lv denied 73 NY2d 1015 [1989]). We rejectdefendant's contention that the sentence was "unauthorized, illegally imposed or otherwiseinvalid as a matter of law" (CPL 440.20 [1]). Contrary to the contention of defendant, theimposition of consecutive sentences for his conviction of attempted murder and burglary in thesecond degree (Penal Law § 140.25 [1] [a]) was proper (see People v Brathwaite,63 NY2d 839, 842-843 [1984]; cf. Penal Law § 70.25 [2]). We further concludethat defendant was properly adjudicated a second felony offender. Even assuming, arguendo, thatthe People failed to comply with CPL 400.21, we conclude that strict compliance with the statutewas not required inasmuch as defendant received reasonable notice of the accusations againsthim and was provided an opportunity to be heard with respect to those accusations during thepersistent felony offender proceeding (see People v Bouyea, 64 NY2d 1140, 1142[1985]; People v Sampson, 30AD3d 623, 623-624 [2006], lv denied 7 NY3d 817 [2006]).Present—Hurlbutt, J.P., Martoche, Centra, Pine and Gorski, JJ.