| People v DelCarpio |
| 2012 NY Slip Op 08329 [101 AD3d 746] |
| December 5, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert DelCarpio, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Noliesa Miller of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.),rendered December 8, 2009, convicting him of attempted grand larceny in the third degree, uponhis plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant claims that his adjudication as a second felony offender was illegal becausethe predicate offense was not a felony under New York law. Contrary to the People's contention,the defendant's claim is not barred by his purported waiver of the right to appeal. First, the recorddoes not establish that the waiver was knowing, voluntary, and intelligent, because the SupremeCourt failed to ensure that the defendant knew the nature of the rights being waived or theconsequences of the waiver (see Peoplev Bradshaw, 18 NY3d 257, 264 [2011]; People v Callahan, 80 NY2d 273, 283[1992]). Second, even if the waiver were valid, it would not bar the defendant's claim that hereceived an illegal sentence (see Peoplev Iliff, 96 AD3d 974, 975 [2012]; People v Maglione, 305 AD2d 426, 426[2003]).
Nonetheless, the defendant failed to preserve his claim for appellate review (see CPL470.05 [2]; People v Samms, 95 NY2d 52, 57 [2000]), and, under the circumstances ofthis case, we decline to exercise our interest of justice jurisdiction to review it (see CPL470.15 [3] [c]; People v Alves, 282 AD2d 613, 613 [2001]; cf. People v Iliff, 96AD3d at 975).
The defendant's remaining contention is without merit. Skelos, J.P., Balkin, Dickerson andHinds-Radix, JJ., concur.