Opinion
KA 02-01384.
November 21, 2003.
Appeal from a judgment of Cayuga County Court (Corning, J.), entered June 13, 2002, convicting defendant upon her plea of guilty of burglary in the third degree and grand larceny in the fourth degree.
David P. Elkovitch, Auburn, for Defendant-Appellant.
James B. Vargason, District Attorney, Auburn (Samuel J. Finnessey, Jr., of Counsel), for Plaintiff-Respondent.
Before: Present: Pigott, Jr., P.J., Pine, Scudder, Gorski, and Lawton, JJ.
MEMORANDUM AND ORDER
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 her upon her plea of guilty of burglary in the third degree (Penal Law § 140.20) and grand larceny in the fourth degree (§ 155.30 [1]). She contends that County Court erred in sentencing her as a second felony offender based on her prior burglary conviction in the Commonwealth of Pennsylvania because that conviction was not the equivalent of a felony in New York. Defendant failed to controvert the allegations in the predicate felony statement at the time of sentencing ( see CPL 400.21), however, and thus has failed to preserve that contention for our review ( see People v. Smith, 73 N.Y.2d 961; People v. Acoff, 289 A.D.2d 1085, lv denied 98 N.Y.2d 635). There is no support in the record for the further contention of defendant that the court failed to sentence her in accordance with a sentencing promise and, indeed, the terms of incarceration imposed were well within the statutorilymandated limits ( see Penal Law § 70.06[d], [e]; [4][b]).