| People v Gathers |
| 2013 NY Slip Op 03706 [106 AD3d 1333] |
| May 23, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vDerrick E. Gathers, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Defendant pleaded guilty to criminal possession of a weapon in the second degree infull satisfaction of an eight-count indictment and other pending charges. In considerationof his plea, the People and County Court agreed to a prison term of no more than eightyears followed by five years of postrelease supervision. At sentencing, defendantadmitted to being a predicate felon, and County Court thereafter sentenced him, as asecond felony offender, to a prison term of eight years followed by five years ofpostrelease supervision. Defendant now appeals.
Defendant's initial claim—that County Court failed to comply with theprovisions of CPL 400.21 in establishing his status as a second felonyoffender—is unpreserved for our review as defendant voiced no objection in thisregard at sentencing (see Peoplev Walton, 101 AD3d 1489, 1490 [2012], lv denied 20 NY3d 1105[2013]). In any event, the record reflects that defendant was provided with a copy of thepredicate felony statement, given an opportunity to be heard with respect to the validitythereof and acknowledged that he committed the prior felonies described therein.Accordingly, we find that there was substantial compliance with the statute (seeid.; People v Winslow,100 AD3d 1031, 1031 [2012]; People v Glynn, 72 AD3d [*2]1351, 1352 [2010], lv denied 15 NY3d 773[2010]). As for defendant's assertions that his plea was not knowing, voluntary andintelligent and that he was denied the effective assistance of counsel, there is nothing inthe record to indicate that defendant moved to withdraw the plea or vacate the judgmentof conviction; hence, these issues are unpreserved for our review (see People v Bolden, 78 AD3d1419, 1420 [2010], lv denied 16 NY3d 828 [2011]). Further, the narrowexception to the preservation requirement was not triggered here (see People v Caldwell, 80AD3d 998, 998 [2011], lv denied 16 NY3d 857 [2011]; People vBolden, 78 AD3d at 1420).
Finally, as defendant points out, the certificate of conviction and the uniformsentence and commitment sheet incorrectly indicate that defendant was convicted of aclass B felony instead of a class C felony (see Penal Law § 265.03) andmust be amended accordingly (cf. People v Vasavada, 93 AD3d 893, 894 [2012], lvdenied 19 NY3d 978 [2012]; People v Martinez, 37 AD3d 1099, 1100 [2007], lvdenied 8 NY3d 947 [2007]).
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.