| People v Hartfield |
| 2017 NY Slip Op 04325 [151 AD3d 1116] |
| June 1, 2017 |
| Appellate Division, Third Department |
[*1](June 1, 2017)
| The People of the State of New York, Respondent, v ErnestHartfield, Also Known as Snoopy, Appellant. |
Cliff Gordon, Monticello, for appellant.
Paul Czajka, District Attorney, Hudson (Joyce Crawford of counsel), for respondent.
Devine, J. Appeal from a judgment of the County Court of Columbia County (Koweek, J.),rendered June 24, 2014, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a controlled substance in the third degree, criminal possession of a controlledsubstance in the fourth degree (two counts), criminal sale of a controlled substance in the thirddegree (nine counts) and resisting arrest, and the violation of unlawful possession ofmarihuana.
Defendant was charged, in three indictments, with criminal possession of a controlledsubstance in the third degree, criminal possession of a controlled substance in the fourth degree(two counts), criminal sale of a controlled substance in the third degree (nine counts), resistingarrest and unlawful possession of marihuana. Following an unsuccessful suppression motion, hepleaded guilty as charged and waived his right to appeal. He did so upon the understanding thathis guilty plea would satisfy other pending charges and that, regardless of the outcome of adispute as to whether his prior conviction for a federal drug offense rendered him a second felonyoffender, there would be a joint recommendation to sentence him to no more than7
Initially, we find that defendant made a knowing, intelligent and voluntary waiver of his rightto appeal. Defendant executed a written plea agreement for each indictment that explained [*2]his right to appeal and waived it aside from a challenge to "thesentence . . . should it be harsher than the sentence that the District Attorney and[defendant] negotiated and jointly recommended." During the plea colloquy, defendantacknowledged that he had read those documents and had sufficient time to discuss them withdefense counsel. County Court then "adequately described [the right to appeal] without lumpingit into the panoply of rights normally forfeited upon a guilty plea" and confirmed that defendantunderstood his decision to waive it except as described in the written plea agreements (People v Sanders, 25 NY3d 337,341 [2015]). The record accordingly establishes that defendant's appeal waivers were valid(see id.; People v Lopez, 6NY3d 248, 257 [2006]; People vToledo, 144 AD3d 1332, 1332-1333 [2016], lv denied 29 NY3d 1001 [Apr. 6,2017]). The valid appeal waivers, in turn, preclude his challenges to the denial of his suppressionmotion (see People v Sanders, 25 NY3d at 342; People v Kemp, 94 NY2d 831,833 [1999]) and the severity of his sentence (see People v Lopez, 6 NY3d at 255).
Defendant's further attack upon the procedures employed to determine his predicate felonystatus survives his appeal waivers (seePeople v Glynn, 72 AD3d 1351, 1351-1352 [2010], lv denied 15 NY3d 773[2010]), but is unpreserved due to his failure to object to that procedure before County Court(see People v Pellegrino, 60 NY2d 636, 637 [1983]; People v Gathers, 106 AD3d 1333, 1333-1334 [2013], lvdenied 21 NY3d 1073 [2013]). In any event, defendant pleaded guilty knowing full well thatthe question of whether he would be sentenced as a second felony offender remained unresolved.The People did not file a predicate felony statement in a timely manner, but did hand one up atsentencing stating that defendant had previously been convicted of a federal drug offenseconstituting a felony under New York law (see CPL 400.21 [2]). Defense counsel thenstated on the record that he had advised defendant that the federal conviction amounted to a priorfelony conviction and that there was "nothing to challenge," at which point defendant admittedunder oath that the allegations in the statement were accurate. Under these circumstances, "[t]hePeople's failure to file a predicate statement [until after sentencing] was harmless, and remandingfor filing and resentencing would be futile and pointless" (People v Bouyea, 64 NY2d1140, 1142 [1985]; see People v Harris, 61 NY2d 9, 20 [1983]; People v Gathers,106 AD3d at 1334; People vWalton, 101 AD3d 1489, 1490 [2012], lv denied 20 NY3d 1105 [2013]).
As a final matter, a few of our prior cases have noted that "substantial compliance" with CPL400.21 is sufficient to uphold sentencing a defendant as a second felony offender (People v Pierre, 8 AD3d 904, 906[2004], lv denied 3 NY3d 710 [2004]), but that a "complete failure" to file a predicatestatement will "render[ ] the sentence invalid as a matter of law" (id. at 907; see People v De Fayette, 16 AD3d708, 710 [2005], lv denied 4 NY3d 885 [2005]). Our reading of those cases is thatthey stand for the proposition that a significant failure to comply with the procedures of CPL400.21, absent circumstances showing the error to be harmless, will be fatal to the ensuingsentence (see e.g. People v Bouyea, 64 NY2d at 1142; People v Harris, 61 NY2dat 20). We do not read them as holding that the failure to timely file a predicate statement isinexorably fatal to the validity of the ensuing sentence and, to the extent that reading is possible,we do not countenance it.
Peters, P.J., Garry, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.