Opinion
12-07-2016
The PEOPLE, etc., respondent, v. Marcel J. COBB, appellant.
Mark Diamond, New York, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Mark Diamond, New York, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Condon, J.), rendered February 24, 2011, convicting him of robbery in the first degree, robbery in the second degree, and robbery in the third degree (four counts), upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed. The defendant seeks to have his conviction for robbery in the third degree, as charged under count three of the indictment, dismissed on the ground that it is an inclusory concurrent count of the crime of robbery in the second degree, as charged under count two of the indictment (see CPL 300.30[4] ). CPL § 300.40(3)(b) provides that, with respect to inclusory concurrent counts, “[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted.” The defendant's reliance on article 300 of the CPL is misplaced, however, as that article “deals only with trials, and has no application to convictions obtained on [a] plea of guilty” (People v. Walton, 41 N.Y.2d 880, 880–881, 393 N.Y.S.2d 979, 362 N.E.2d 610 ). In contrast, CPL 220.10(2) provides that, with exceptions not relevant here, “the defendant may as a matter of right enter a plea of ‘guilty’ to the entire indictment.” Here, as part of the negotiated plea agreement, the defendant pleaded guilty to the entire indictment. Accordingly, there is no basis for disturbing his conviction (see People v. Walton, 41 N.Y.2d 880, 393 N.Y.S.2d 979, 362 N.E.2d 610 ; People v. Bliss, 245 A.D.2d 459, 666 N.Y.S.2d 461 ; People v. Freeman, 117 A.D.2d 677, 678, 498 N.Y.S.2d 416 ).
The defendant's contention that the County Court failed to comply with CPL 400.21 before he was sentenced as a second felony offender is unpreserved for appellate review (see CPL 470.05[2] ; People v. Proctor, 79 N.Y.2d 992, 994, 584 N.Y.S.2d 435, 594 N.E.2d 929 ; People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938 ; People v. Luisi, 81 A.D.3d 980, 917 N.Y.S.2d 582 ; People v. Steven B., 81 A.D.3d 843, 844, 916 N.Y.S.2d 832 ). In any event, the defendant's contention is without merit, as the statutory purposes of CPL 400.21 have been met and the court substantially complied with the statute (see People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338 ). The court provided the defendant with notice of the predicate felony statement and an opportunity to be heard. Furthermore, the defendant admitted the allegations in the predicate felony statement, and there is no indication that the defendant contemplated a challenge to the constitutionality of his prior conviction (see People v. Rodriguez, 142 A.D.3d 1189, 38 N.Y.S.3d 224 ; People v. Earl, 133 A.D.3d 875, 20 N.Y.S.3d 158 ; People v. Laterza, 129 A.D.3d 1105, 10 N.Y.S.3d 881 ; People v. Evans, 121 A.D.3d 1012, 1013, 993 N.Y.S.2d 780 ; People v. Jackson, 114 A.D.3d 807, 809, 979 N.Y.S.2d 704 ; People v. Winslow, 100 A.D.3d 1031, 954 N.Y.S.2d 625 ; People v. Luisi, 81 A.D.3d at 980, 917 N.Y.S.2d 582 ; People v. McAllister, 47 A.D.3d 731, 732, 850 N.Y.S.2d 495 ).
The defendant's remaining contention is without merit (cf. People v. Boyer, 22 N.Y.3d 15, 977 N.Y.S.2d 731, 999 N.E.2d 1176 ).