| People v Provencher |
| 2010 NY Slip Op 02685 [72 AD3d 1128] |
| April 1, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v SeanD. Provencher, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Ian H. Silverman of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Rensselaer County (McGrath,J.), rendered September 14, 2007, convicting defendant upon his plea of guilty of the crime ofattempted grand larceny in the third degree.
In full satisfaction of a two-count indictment, defendant pleaded guilty to the crime ofattempted grand larceny in the third degree. Pursuant to the plea agreement, defendant wassentenced to a prison term of 1½ to 3 years, with the sentence to run concurrently withsentences imposed in Albany County and Saratoga County. Defendant now appeals.
We affirm. Defendant's contention that he was sentenced as a second felony offender withoutbeing afforded a hearing pursuant to CPL 400.21 is without merit. The People presentedevidence that defendant was convicted of a felony in 2006. Although defendant initiallyinformed County Court at sentencing that he was challenging the constitutionality of thepredicate conviction, when the court further inquired as to the nature of his challenge, defendantwithdrew it. Inasmuch as defendant was provided an opportunity to challenge his priorconviction and voluntarily waived it, he cannot now argue that he was deprived of his right to ahearing pursuant to CPL 400.21 (see People v West, 181 AD2d 945 [1992]).[*2]
Mercure, J.P., Malone Jr., McCarthy and Garry, JJ.,concur. Ordered that the judgment is affirmed.