Opinion
2013-03891, Ind. No. 65-12.
10-22-2014
The PEOPLE, etc., respondent, v. Jerome EVANS, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
Opinion Appeal by the defendant from a judgment of the County Court, Suffolk County (Toomey, J.), rendered February 22, 2013, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the procedure used to adjudicate him a second felony offender is not precluded by his purported waiver of his right to appeal, since that waiver was invalid (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297, 2014 N.Y. Slip Op. 06101 [2d Dept. 2014] ; People v. Springer, 109 A.D.3d 557, 970 N.Y.S.2d 462 ). Nevertheless, the defendant's contention that he was improperly adjudicated a second felony offender is unpreserved for appellate review (see People v. Proctor, 79 N.Y.2d 992, 994, 584 N.Y.S.2d 435, 594 N.E.2d 929 ; People v. Smith, 73 N.Y.2d 961, 962, 540 N.Y.S.2d 987, 538 N.E.2d 339 ; People v. Ervin, 118 A.D.3d 910, 987 N.Y.S.2d 454 ) and, in any event, without merit. The People filed a statement pursuant to CPL 400.21(2), the defendant admitted he was the person convicted of the prior felony, and there is no indication that the defendant intended to claim that his prior conviction was unconstitutionally obtained (see People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338 ; 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 ). Furthermore, on appeal, the defendant has not alleged any grounds to controvert the predicate felony statement (see People v. Ingram, 118 A.D.3d 722, 986 N.Y.S.2d 846 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).