| People v Johnson |
| 2015 NY Slip Op 08459 [133 AD3d 1028] |
| November 19, 2015 |
| Appellate Division, Third Department |
[*1](November 19, 2015)
| The People of the State of New York,Respondent, v Robert J. Johnson Jr., Appellant. |
Francisco P. Berry, Ithaca, for appellant.
Gwen Wilkinson, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Tompkins County(Rowley, J.), rendered September 21, 2012, convicting defendant upon his plea of guiltyof the crime of robbery in the second degree.
In July 2012, defendant pleaded guilty to one count of robbery in the second degreein full satisfaction of a four-count indictment upon his admission that he, acting inconcert with two others, entered a business in the early morning hours where a card gamewas taking place and forcibly stole property from the game's participants. Pursuant to aplea agreement, defendant agreed to waive his right to appeal, to not pursue any possiblemotions and to execute at sentencing a separate written waiver of appeal. Defendant alsoagreed to admit to having previously been convicted of a federal felony drug conspiracyconviction for purposes of being sentenced as a second felony offender (see 21USC § 846). Prior to sentencing, defendant moved to withdraw his guiltyplea, arguing that his federal felony drug conspiracy conviction did not qualify as apredicate felony for sentencing as a second felony offender (see People v Ramos, 19 NY3d417, 420 [2012]). In response, the People filed, pursuant to CPL 400.21 (2), apredicate felony statement setting forth defendant's three prior felony convictions fromPennsylvania. At sentencing, County Court stated that the relief requested in defendant'swithdrawal motion was satisfied by supplementing the predicate felony allegation withone or more of the Pennsylvania felony convictions that defendant also allocuted to atsentencing. In accordance with the plea agreement, defendant executed the writtenwaiver of appeal, and County Court sentenced [*2]defendant, as a second felony offender, to a prison term offive years and five years of postrelease supervision. Defendant appeals.
Defendant contends that County Court should have granted his motion to withdrawhis plea. In view of defense counsel's statement on the record, as well as defendant's ownresponses to County Court's questions, we find that defendant effectively abandoned hisCPL 220.60 motion, expressly agreed to plead guilty pursuant to the plea agreement andwas validly sentenced as a second felony offender in accordance with that agreement(see CPL 400.21; Peoplev Tabbott, 61 AD3d 1183, 1184 [2009]). In any event, defendant failed topreserve adequately any challenge to the predicate felony statement because, atsentencing, defendant admitted to his three prior felony convictions in Pennsylvania anddid not object to County Court's finding that any one or more of his three prior felonyconvictions qualify as prior convictions for purposes of being sentenced as a secondfelony offender (see People v Smith, 73 NY2d 961, 962-963 [1989]; People v Leszczynski, 96AD3d 1162, 1163 [2012]; People v Washington, 89 AD3d 1140, 1142 [2011];People v Johnson, 266 AD2d 728, 729-730 [1999]). Moreover, defense counselconsented to the second felony offender statement and admitted on behalf of defendantthat the prior felony convictions were valid (see Penal Law § 70.06;People v Hernandez, 62AD3d 1095, 1096-1097 [2009]; People v Ochs, 16 AD3d 971, 971-972 [2005]).
McCarthy, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.