People v Wilcher

People v Wilcher 2018 NY Slip Op 04110 Decided on June 7, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 7, 2018
Renwick, J.P., Richter, Webber, Kern, Moulton, JJ.
6828 2083/17

[*1]The People of the State of New York, Respondent,

v

Keith Wilcher, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Brent Ferguson of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered June 27, 2017, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of one year, unanimously affirmed.

The allegations in defendant's predicate felony statement are not deemed admitted under CPL 400.21(3) so as to result in a waiver of his claim that his out-of-state conviction was not the equivalent of a New York felony. The court did not adequately adhere to the statutory requirement that it ask defendant if he wished to "controvert any allegation made" in the predicate felony statement, which also requires that it provide defendant a clear opportunity to do so in response to that particular question (see People v Jurgins, 26 NY3d 607, 611 [2015]. However, the claim is unpreserved because it was not raised before the sentencing court or by way of a CPL 440.20 motion (see id. at 611-12), and we decline to review this issue in the interest of justice.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 7, 2018

CLERK