| People v Evans |
| 2011 NY Slip Op 06955 [88 AD3d 1029] |
| October 6, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ClarenceEvans, Also Known as E-Money, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Schenectady County (Drago,J.), rendered September 11, 2009, convicting defendant upon his plea of guilty of the crimes ofattempted burglary in the second degree and assault in the second degree.
In satisfaction of three pending indictments and other charges, defendant pleaded guilty toattempted burglary in the second degree and assault in the second degree and further waived hisright to appeal. As part of the plea agreement, defendant also admitted to a number of priorconvictions in order to be sentenced as a persistent violent felony offender. County Courtaccordingly sentenced defendant to an aggregate prison term of 15 years to life—withinthe range contemplated by the plea agreement—and he now appeals.
We affirm. To constitute a persistent violent felony offender, defendant must have beensentenced upon two predicate violent felony convictions "not more than ten years beforecommission of the felony of which [he] presently stands convicted" (Penal Law § 70.04 [1][b] [iv]; see Penal Law § 70.08 [1] [a]). Sentencing in the predicate convictionshere did not fall within that period, and defendant attacks the People's failure to allege, andCounty Court's failure to expressly find, that the period was sufficiently tolled by his interveningincarceration (see CPL [*2]400.15, 400.16 [2]; Penal Law§ 70.04 [1] [b] [v]; § 70.08 [1] [a]). As this argument relates solely to the proceduresemployed in determining defendant's sentence, it is both precluded by his valid appeal waiver(see People v Callahan, 80 NY2d 273, 280-281 [1992]; People v Haynes, 70 AD3d 718,718-719 [2010], lv denied 15 NY3d 751 [2010]) and unpreserved given his failure toraise it before County Court (see People v Proctor, 79 NY2d 992, 994 [1992]; People v Kelly, 65 AD3d 886, 889[2009], lv denied 13 NY3d 860 [2009]). Regardless, any error is harmless, as the recorddemonstrates that the prior sentences were imposed within the requisite period given defendant'sprolonged intervening incarceration (see People v Haynes, 70 AD3d at 719; People vKelly, 65 AD3d at 889-890; Peoplev Buel, 53 AD3d 930, 932 [2008]).
Mercure, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.