Opinion
109046
12-06-2018
The PEOPLE of the State of New York, Respondent, v. Devon BALLARD, Appellant.
Kelly M. Monroe, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Kelly M. Monroe, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Lynch, Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
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 A.D.3d 932, 933, 968 N.Y.S.2d 744 [2013] ; People v. Ellis, 53 A.D.3d 776, 777, 861 N.Y.S.2d 485 [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 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Gause, 157 A.D.3d 1167, 1168, 67 N.Y.S.3d 506 [2018], lv denied 31 N.Y.3d 983, 77 N.Y.S.3d 661, 102 N.E.3d 438 [2018] ).
ORDERED that the judgment is affirmed.
Garry, P.J., Lynch, Devine, Mulvey and Aarons, JJ., concur.