People v Stewart

2017 NY Slip Op 08753 [156 AD3d 1059]

December 14, 2017

Appellate Division, Third Department

As corrected through Wednesday, February 7, 2018

[*1]

The People of the State of New York, Respondent, v IanStewart, Appellant.

Andrew Kossover, Public Defender, Kingston (Michael K. Gould of counsel), forappellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered July1, 2017, convicting defendant upon his plea of guilty of the crime of criminal possession of acontrolled substance in the fifth degree.

Defendant waived indictment and pleaded guilty to criminal possession of a controlledsubstance in the fifth degree pursuant to a plea agreement that required him to execute a waiverof appeal. Defendant was sentenced as a second felony offender to three years in prison, to befollowed by three years of postrelease supervision. Defendant now appeals.

We affirm. Defendant's claim that County Court failed to advise him that he could controvertthe allegations contained in the prior felony information and that he was, therefore, improperlysentenced as a second felony offender survives his unchallenged waiver of the right to appeal, butis unpreserved due to his failure to object at sentencing despite having the opportunity to do so(see People v Berry, 152 AD3d1080, 1080-1081, 1081 n [2017]; People v Woods, 147 AD3d 1156, 1157 [2017], lv denied29 NY3d 1089 [2017]; cf. People vMurdie, 134 AD3d 1353, 1354 [2015]). In any event, defendant was provided with acopy of the prior felony information, indicated that he would not contest the allegations thereinand admitted the predicate conviction at sentencing. Accordingly, were the issue properly beforeus, we would conclude that County Court substantially complied with the requirements of CPL400.21 (3) (see People v Thorpe,141 AD3d 927, 935 [2016], lv denied 28 NY3d 1031 [2016]; People v Wilkins, 118 AD3d 1038,1039 [2014], lv denied 24 [*2]NY3d 965 [2014]; People v Walton, 101 AD3d 1489,1490 [2012], lv denied 20 NY3d 1105 [2013]).

Egan Jr., J.P., Lynch, Rose, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.