| People v Mosley |
| 2010 NY Slip Op 01026 [70 AD3d 1126] |
| February 11, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ManuelMosley, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Warren County (Hall, J.), renderedJanuary 28, 2009, which resentenced defendant following his conviction upon his plea of guiltyof the crimes of criminal sale of a controlled substance in the third degree and attempted assaultin the second degree.
Defendant pleaded guilty to criminal sale of a controlled substance in the third degree andattempted assault in the second degree. He was sentenced in accordance with the negotiated pleaagreement to 11 years in prison and three years of postrelease supervision for the criminal saleconviction and 2 to 4 years in prison for the attempted assault conviction, with the prison termsordered to run concurrently. On appeal, this Court ruled that defendant had not been properlysentenced as a second felony offender because the mandates of CPL 400.21 had not beensatisfied (People v Mosley, 54AD3d 1098, 1099 [2008]). Consequently, the sentence was vacated and the matter remittedto County Court for resentencing (id.). After the People properly filed a second felonyoffender statement pursuant to CPL 400.21, County Court resentenced defendant as a secondfelony offender to the agreed-upon, aggregate 11-year prison term followed by three years ofpostrelease supervision. Defendant appeals.
We note preliminarily that defendant overtly thwarted his attorney's attempt to file a motionto withdraw his plea and repeatedly insisted on being sentenced in accordance with the [*2]negotiated plea agreement (see generally People v Ruddy, 51 AD3d 1134, 1135 [2008], lvdenied 12 NY3d 787 [2009]). Turning to the merits, contrary to defendant's protestationsotherwise, "a predicate felon is precluded from being sentenced as a first time offenderregardless of the [People's failure] to file the predicate felony statement" (People v May,180 AD2d 974 [1992] [internal quotation marks and citation omitted]). Here, although defendantcontroverted his status as a second felony offender upon remittal, County Court conducted ahearing and the People presented a certificate of conviction indicating that defendant wasconvicted of attempted burglary in the third degree in 1999. Despite myriad opportunities to beheard in regard to the prior conviction, defendant failed to challenge its constitutionality and,thus, County Court properly resentenced him as a second felony offender (see People v Pelkey, 63 AD3d1188, 1190 [2009], lv denied 13 NY3d 748 [2009]; People v Pierre, 45 AD3d 1056,1057-1058 [2007], lv denied 9 NY3d 1037 [2008]).
Defendant's claim that his sentence is harsh and excessive is similarly unavailing (see People v De Fayette, 27 AD3d840, 840-841 [2006], lv denied 7 NY3d 754 [2006]; People v Therrien, 301AD2d 751, 752-753 [2003], lv denied 99 NY2d 633 [2003]).
Cardona P.J., Spain, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.