Opinion
No. KA 05-01250.
December 22, 2006.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered May 4, 2005. The judgment convicted defendant, upon his plea of guilty, of robbery in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF COUNSEL), for Defendant-Appellant.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (TINA M. STANFORD OF COUNSEL), for Plaintiff-Respondent.
Before: Hurlbutt, J.P., Gorski, Smith and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of robbery in the second degree (Penal Law § 160.10 [a]). Defendant failed at the time of sentencing to controvert the allegations in the second felony offender statement filed by the People pursuant to CPL 400.21 and thus failed to preserve for our review his contention that he was improperly sentenced as a second felony offender ( See People v Smith, 73 NY2d 961; People v Austin, 1 AD3d 957, 957-958, lv denied 1 NY3d 594; People v Duquin, 212 AD2d 1059). Contrary to the contention of defendant, the narrow exception to the preservation rule does not apply (see People v Nieves, 2 NY3d 310, 315-316; cf. People v Samms, 95 NY2d 52, 55-56). In any event, we conclude that there was substantial compliance with CPL 400.21 ( see People v Hughes, 28 AD3d 1185, lv denied 7 NY3d 790; People v Chrysler, 260 AD2d 945).