| People v Metayeo |
| 2017 NY Slip Op 08042 [155 AD3d 1239] |
| November 16, 2017 |
| Appellate Division, Third Department |
[*1](November 16, 2017)
| The People of the State of New York, Respondent, v HughesMetayeo, Appellant. |
Eric K. Schillinger, East Greenbush, for appellant.
Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), for respondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (McGrath, J.), rendered January17, 2014 in Rensselaer County, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a weapon in the second degree.
When this case was previously before this Court, we rejected counsel's Anders brief,withheld decision and assigned new counsel to represent defendant on appeal (132 AD3d 1159[2015]). New counsel has submitted a brief challenging the validity of defendant's waiver of theright to appeal as well as his status as a second felony offender.
Initially, the People concede, and our review of the record confirms, that the waiver of theright to appeal is invalid. The record reflects that County Court did not explain to defendant "thatthe right to appeal is separate and distinct from those rights automatically forfeited upon a plea ofguilty" (People v Lopez, 6 NY3d248, 256 [2006]; see People vMeddaugh, 150 AD3d 1545, 1546 [2017]). Furthermore, although defendant executed awritten appeal waiver at the time of sentencing, the court did not "elicit from defendant that heunderstood, read or was advised of the nature of [the] appeal waiver[ ]" (People v Rock, 151 AD3d 1383,1384 [2017]). As such, the appeal waiver does not preclude defendant's challenge to thesentence.
Defendant pleaded guilty to criminal possession of a weapon in the second degree and,pursuant to the terms of the plea agreement, was sentenced as a second violent felony offender toa prison term of seven years, followed by five years of postrelease supervision. At sentencing,defense counsel was provided with a predicate violent felony offender statement with regard to aFebruary 25, 2003 conviction of attempted robbery in the second degree. Defendant contendsthat, because the predicate violent felony offender statement did not satisfy the requirements set[*2]forth in CPL 400.15 inasmuch as it did not set forth the placewhere the conviction occurred or whether there was a tolling of the 10-year period due toincarceration, he was improperly sentenced as a second felony offender. Although the location ofthat conviction was not reflected on the statement, County Court verified that it occurred inKings County. Thereafter, defendant declined to deny or controvert the facts as contained in thepredicate violent felony offender statement. Furthermore, defendant does not challenge thevalidity of the prior conviction or the procedures followed. As such, we find his challenge to theuse of the predicate violent felony offender statement to sentence him as a second violent felonyoffender to be unpreserved (see People v Smith, 73 NY2d 961, 962-963 [1989]; People v Manford, 125 AD3d1047, 1047-1048 [2015]; People vLeszczynski, 96 AD3d 1162, 1163-1164 [2012], lv denied 19 NY3d 998[2012]). Furthermore, to the extent that defendant asserts that the incomplete predicate felonyoffender statement renders his plea involuntary, that issue is also unpreserved absent anappropriate postallocution motion (seePeople v Mills, 146 AD3d 1173, 1174 [2017]).
McCarthy, J.P., Lynch, Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.