People v Hummel

2015 NY Slip Op 03581 [127 AD3d 1506]

April 30, 2015

Appellate Division, Third Department

As corrected through Wednesday, June 3, 2015

[*1]

The People of the State of New York, Respondent, vDustin R. Hummel, Appellant.

John R. Trice, Elmira, for appellant.

John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.

Clark, J. Appeal from a judgment of the County Court of Otsego County (Burns, J.),rendered June 14, 2013, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the third degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to criminal sale ofa controlled substance in the third degree and purportedly waived his right to appeal. Theplea agreement contemplated that defendant would be sentenced, as a second felonyoffender, to 41/2 years in prison to be followed by two years of postreleasesupervision. County Court imposed that sentence, and defendant now appeals.

We affirm. Defendant's contention that the motion practice and discovery efforts ofdefense counsel amounted to ineffective assistance was "forfeited by his guilty plea, as adefendant who enters a plea and admits guilt 'may not later seek review of claims relatingto the deprivation of rights that took place before the plea was entered' " (People v Trombley, 91 AD3d1197, 1201 [2012], lv denied 21 NY3d 914 [2013], quoting People vHansen, 95 NY2d 227, 230 [2000]). Defendant further asserts that he wasimproperly sentenced as a second felony offender, inasmuch as he was deprived of theopportunity to contest the allegations contained in the prior felony information asrequired by CPL 400.21 (3). This claim is unpreserved for our review given defendant'sfailure to object at sentencing (see People v House, 119 AD3d 1289, 1290 [2014]; People v Morse, 111 AD3d1161, 1161 [2013], lv denied 23 NY3d 1040 [2014]). In any [*2]event, because a second felony offender statement was filedby the People and defendant was well aware that he would be sentenced as a secondfelony offender when he entered his guilty plea, we find that there was substantialcompliance with CPL 400.21 (see People v Bouyea, 64 NY2d 1140, 1142[1985]; People v Chrysler, 260 AD2d 945, 945-946 [1999]; People vMann, 258 AD2d 738, 739 [1999], lv denied 93 NY2d 900 [1999]).

Garry, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed.