Opinion
No. 62 SSM 62.
Decided January 6, 2011.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered March 15, 2010. The Appellate Division affirmed a judgment of the St. Lawrence County Court (Kathleen M. Rogers, J.), which had convicted defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentenced defendant, as a second violent felony offender, to a term of imprisonment of nine years with five years postrelease supervision.
The Appellate Division found that defendant failed to preserve his claim that his sentence as a second violent felony offender was illegally predicated on his 1999 convictions in which the court failed to impose a mandatory period of postrelease supervision. The Court held that defendant's failure to object to or controvert the use of his prior felony convictions or request a hearing on the issue waived his right to challenge the predicate convictions and their validity.
People v Ashley, 71 AD3d 1286, affirmed.
D.J. J.A. Cirando, Syracuse ( John A. Cirando of counsel), for appellant.
Derek P. Champagne, District Attorney, Malone ( Jennifer M. Hollis of counsel), for respondent.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH and JONES concur; Judge PIGOTT taking no part.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant's challenge to his adjudication as a second violent felony offender and the sentence that was originally imposed is moot because County Court resentenced him as a first felony offender in a postjudgment CPL 440.20 proceeding that is not a subject of this appeal. Defendant failed to preserve his argument that the guilty plea became involuntary after he was subsequently resentenced for a prior, unrelated criminal offense. Defendant's remaining contentions lack merit.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed in a memorandum.