| People v Cobb |
| 2016 NY Slip Op 08245 [145 AD3d 738] |
| December 7, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Marcel J. Cobb, Appellant. |
Mark Diamond, New York, NY, for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Glenn Green of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Condon, J.), rendered February 24, 2011, convicting him of robbery in the first degree,robbery in the second degree, and robbery in the third degree (four counts), upon his pleaof guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant seeks to have his conviction for robbery in the third degree, ascharged under count three of the indictment, dismissed on the ground that it is aninclusory concurrent count of the crime of robbery in the second degree, as chargedunder count two of the indictment (see CPL 300.30 [4]). CPL 300.40 (3) (b)provides that, with respect to inclusory concurrent counts, "[a] verdict of guilty upon thegreatest count submitted is deemed a dismissal of every lesser count submitted." Thedefendant's reliance on article 300 of the CPL is misplaced, however, as that article"deals only with trials, and has no application to convictions obtained on [a] plea ofguilty" (People v Walton, 41 NY2d 880, 880-881 [1977]). In contrast, CPL220.10 (2) provides that, with exceptions not relevant here, "the defendant may as amatter of right enter a plea of 'guilty' to the entire indictment." Here, as part of thenegotiated plea agreement, the defendant pleaded guilty to the entire indictment.Accordingly, there is no basis for disturbing his conviction (see People v Walton,41 NY2d 880 [1977]; People v Bliss, 245 AD2d 459 [1997]; People vFreeman, 117 AD2d 677, 678 [1986]).
The defendant's contention that the County Court failed to comply with CPL 400.21before he was sentenced as a second felony offender is unpreserved for appellate review(see CPL 470.05 [2]; People v Proctor, 79 NY2d 992, 994 [1992];People v Pellegrino, 60 NY2d 636, 637 [1983]; People v Luisi, 81 AD3d980 [2011]; People vSteven B., 81 AD3d 843, 844 [2011]). In any event, the defendant's contentionis without merit, as the statutory purposes of CPL 400.21 have been met and the courtsubstantially complied with the statute (see People v Bouyea, 64 NY2d 1140,1142 [1985]). The court provided the defendant with notice of the predicate felonystatement and an opportunity to be heard. Furthermore, the defendant admitted theallegations in the predicate felony statement, and there is no indication that the defendantcontemplated a challenge to the constitutionality of his prior conviction (see People v Rodriguez, 142AD3d 1189 [2016]; Peoplev Earl, 133 AD3d 875 [2015]; People v [*2]Laterza, 129 AD3d1105 [2015]; People vEvans, 121 AD3d 1012, 1013 [2014]; People v Jackson, 114 AD3d 807, 809 [2014]; People v Winslow, 100 AD3d1031 [2012]; People v Luisi, 81 AD3d at 980; People v McAllister, 47 AD3d731, 732 [2008]).
The defendant's remaining contention is without merit (cf. People v Boyer, 22 NY3d15 [2013]). Balkin, J.P., Dickerson, Hinds-Radix and Brathwaite Nelson, JJ.,concur.