People v Brown

People v Brown 2014 NY Slip Op 08449 Decided on December 3, 2014 Appellate Division, Second 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 December 3, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
SANDRA L. SGROI, JJ.
2012-08558
(Ind. No. 11-00574)

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

v

Frank Brown, appellant.

Arza Feldman, Uniondale, N.Y., for appellant.

David M. Hoovler, District Attorney, Middletown, N.Y. (Robert H. Middlemiss of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered September 11, 2012, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the prosecutor and the County Court failed to comply with the procedures of CPL 400.21 before sentencing him as a second felony offender is unpreserved for appellate review, since the defendant did not move to vacate his plea or otherwise raise this issue in the sentencing court (see People v Proctor, 79 NY2d 992, 994; People v Smith, 73 NY2d 961, 962; People v Gilbert, 114 AD3d 874; People v Winslow, 100 AD3d 1031). In any event, the defendant's contention is without merit, as the prosecutor and the court substantially complied with CPL 400.21 (see People v Bouyea, 64 NY2d 1140, 1142). The court provided the defendant with notice of the predicate felony statement and an opportunity to be heard. Furthermore, the defendant admitted the allegations in the predicate felony statement and acknowledged that he was not challenging the constitutionality of his prior conviction (see People v Bouyea, 64 NY2d at 1142; People v Winslow, 100 AD3d 1031; People v Luisi, 81 AD3d 980; People v Merriman, 45 AD3d 700).

DILLON, J.P., DICKERSON, ROMAN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court