| People v Winslow |
| 2012 NY Slip Op 08168 [100 AD3d 1031] |
| November 28, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Johnathan R. Winslow, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Donald Berk of counsel; Danielle Shureon the brief), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Nassau County (Jaeger,J., at plea; Aaron, J., at sentencing), rendered February 8, 2011, convicting him of criminal saleof a controlled substance in the third degree and criminal possession of a controlled substance inthe seventh degree under superior court information No. 839/10, upon his plea of guilty, andimposing sentence, and (2) a judgment of the same court (McCormack, J., at plea; Aaron, J., atsentencing), also rendered February 8, 2011, convicting him of criminal sale of a controlledsubstance in the third degree under superior court information No. 2677/10, upon his plea ofguilty, and imposing sentence.
Ordered that the judgments are affirmed.
Contrary to the People's contention, the defendant did not validly waive his right to appeal(see People v Lopez, 6 NY3d248 [2006]; People v Holmes,95 AD3d 1236 [2012], lv denied 19 NY3d 997 [2012]).
The defendant's contention that the Supreme Court failed to comply with CPL 400.21 beforesentencing him as a second felony offender is unpreserved for appellate review (see People vProctor, 79 NY2d 992, 994 [1992]; People v Smith, 73 NY2d 961, 962 [1989]; People v Cullum, 93 AD3d 856[2012]; People v Delston, 30 AD3d536, 536 [2006]; People v Alston, 289 AD2d 339 [2001]). In any event, thedefendant's contention is without merit, as the statutory purposes of CPL 400.21 have been metand the Supreme Court substantially complied with the statute (see People v Bouyea, 64NY2d 1140, 1142 [1985]). The Supreme Court provided the defendant with notice of thepredicate felony statement and an opportunity to be heard. Furthermore, the defendant admittedthe allegations in the predicate felony statement, and there is no indication that the defendantcontemplated a challenge to the constitutionality of his prior conviction (see People vBouyea, 64 NY2d at 1142; People vLuisi, 81 AD3d 980 [2011]; People v Glynn, 72 AD3d 1351 [2010]; People v Merriman, 45 AD3d 700[2007]).
The defendant's contention that the Supreme Court failed to conduct a hearing or adducesufficient evidence to determine the amount of restitution imposed is unpreserved for appellatereview, since the defendant failed to request a hearing or otherwise challenge the amount ofrestitution imposed at sentencing (seePeople v Toomer, 61 AD3d 899, 900 [2009]). In any event, since [*2]the defendant agreed to the amount of restitution imposed as part ofa plea agreement, the Supreme Court did not err in imposing restitution without conducting ahearing (see id. at 900).
The defendant's remaining contention is unpreserved for appellate review and, in any event,without merit. Skelos, J.P., Angiolillo, Dickerson and Hall, JJ., concur.