| People v Butler |
| 2012 NY Slip Op 04469 [96 AD3d 1367] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Calvin Butler,Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a resentence of the Ontario County Court (William F. Kocher, J.), renderedNovember 9, 2009. Defendant was resentenced upon his conviction of criminal sale of acontrolled substance in the fifth degree.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted upon his plea of guilty of criminal sale of acontrolled substance in the fifth degree (Penal Law § 220.31), and he appeals from theresentence on that conviction. Defendant contends that he raised various possible defenses duringthe plea colloquy and thus that County Court erred in failing to conduct a sufficient inquiry toensure that the plea was knowingly, voluntarily, and intelligently entered. That contention isunpreserved for our review inasmuch as defendant did not move to withdraw the plea or tovacate the judgment of conviction on that ground (see People v Davis, 37 AD3d 1179, 1179 [2007], lv denied8 NY3d 983 [2007]; People v Swank, 278 AD2d 861, 861 [2000], lv denied 96NY2d 807 [2001]; see also People vSimpson, 19 AD3d 945 [2005]), and this case does not fall within the rare exception tothe preservation requirement set forth in People v Lopez (71 NY2d 662, 666 [1988])because nothing in the plea allocution calls into question the voluntariness of the plea or casts"significant doubt" upon defendant's guilt (People v Lewandowski, 82 AD3d 1602, 1602 [2011]; seeSwank, 278 AD2d at 861). In any event, there is no merit to defendant's contention.
We reject the further contention of defendant that his absence from a pretrial conferencedeprived him of the right to be present at a material stage of the criminal proceeding. Where aproceeding "involves only questions of law or procedure," a defendant's presence is not required(People v Rodriguez, 85 NY2d 586, 591 [1995]; see People v Levy, 52 AD3d 1025, 1028 [2008]; People v Afrika, 13 AD3d 1218,1222 [2004], lv denied 4 NY3d 827 [2005]). Here, we conclude that defendant did nothave a right to be present at the conference because "the subject legal discussion did notimplicate his peculiar factual knowledge or otherwise present the potential for his meaningfulparticipation" (People v Fabricio, 3NY3d 402, 406 [2004]; see Peoplev Robinson, 28 AD3d 1126, 1128 [2006], lv denied 7 NY3d 794 [2006];People v Houk, 222 AD2d 1074, 1075 [1995]).
Defendant failed to preserve for our review his contention that the People failed to [*2]comply with the procedural requirements of CPL 400.21 when hewas resentenced as a second felony drug offender (see People v Pellegrino, 60 NY2d 636,637 [1983]; People v Mateo, 53AD3d 1111, 1112 [2008], lv denied 11 NY3d 791 [2008]; People v Beu, 24 AD3d 1257[2005], lv denied 6 NY3d 809 [2006]). In any event, defendant waived strict compliancewith that statute by admitting the prior felony conviction in open court (see People v Perez, 85 AD3d1538, 1541 [2011]; People vVega, 49 AD3d 1185, 1186 [2008], lv denied 10 NY3d 965 [2008]). Defendant'sfurther contention that he does not qualify as a second felony offender pursuant to Penal Law§ 70.06 need not be preserved for our review and thus is properly before us (see Peoplev Samms, 95 NY2d 52, 56-57 [2000]; People v Ramos, 45 AD3d 702, 703 [2007], lv denied 10NY3d 770 [2008]). We conclude, however, that it is without merit. Although defendant'ssentence upon the prior felony conviction was imposed more than 10 years before thecommission of the present felony, the 10-year period is extended by any period of time duringwhich he was incarcerated (see § 70.06 [1] [b] [iv], [v]), and we therefore concludethat defendant was properly resentenced as a second felony drug offender.Present—Centra, J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.