People v Ballard

People v Ballard 2018 NY Slip Op 08377 Decided on December 6, 2018 Appellate Division, Third 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 and Entered: December 6, 2018
109046

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

DEVON BALLARD, Appellant.

Calendar Date: October 26, 2018
Before: Garry, P.J., Lynch, Devine, Mulvey and Aarons, JJ.

Kelly M. Monroe, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered June 9, 2016, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

Defendant pleaded guilty to burglary in the second degree in full satisfaction of an eight-count indictment and waived the right to appeal. County Court thereafter sentenced him, as a second violent felony offender, to 10 years in prison, to be followed by five years of postrelease supervision. Defendant appeals, and we affirm.

We reject defendant's contention that he was illegally sentenced as a second violent felony offender because County Court failed to comply with the provisions of CPL 400.21 (3). Inasmuch as the record reflects that defendant received adequate notice of and an opportunity to controvert the allegations made in the predicate felony statement, we find substantial compliance with CPL 400.21 (3) (see People v Wood, 108 AD3d 932, 933 [2013]; People v Ellis, 53 AD3d 776, 777 [2008]). To the extent that defendant claims that his sentence is harsh and excessive, our review of this claim is precluded by his unchallenged waiver of the right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Gause, 157 AD3d 1167, 1168 [2018], lv denied 31 NY3d 983 [2018]).

Garry, P.J., Lynch, Devine, Mulvey and Aarons, JJ., concur.

ORDERED that the judgment is affirmed.