Opinion
2012-12-5
The PEOPLE, etc., respondent, v. Robert DELCARPIO, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Noliesa Miller of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Noliesa Miller of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered December 8, 2009, convicting him of attempted grand larceny in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant claims that his adjudication as a second felony offender was illegal because the predicate offense was not a felony under New York law. Contrary to the People's contention, the defendant's claim is not barred by his purported waiver of the right to appeal. First, the record does not establish that the waiver was knowing, voluntary, and intelligent, because the Supreme Court failed to ensure that the defendant knew the nature of the rights being waived or the consequences of the waiver ( see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108). Second, even if the waiver were valid, it would not bar the defendant's claim that he received an illegal sentence ( see People v. Iliff, 96 A.D.3d 974, 975, 946 N.Y.S.2d 626;People v. Maglione, 305 A.D.2d 426, 426, 759 N.Y.S.2d 174).
Nonetheless, the defendant failed to preserve his claim for appellate review ( seeCPL 470.05[2]; People v. Samms, 95 N.Y.2d 52, 57, 710 N.Y.S.2d 310, 731 N.E.2d 1118), and, under the circumstances of this case, we decline to exercise our interest of justice jurisdiction to review it ( seeCPL 470.15 [3][c]; People v. Alves, 282 A.D.2d 613, 613, 722 N.Y.S.2d 912;cf. People v. Iliff, 96 A.D.3d at 975, 946 N.Y.S.2d 626).
The defendant's remaining contention is without merit.