Opinion
2014-06-4
The PEOPLE, etc., respondent, v. Lloyd INGRAM, appellant.
Mark Diamond, New York, N.Y., for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz and Robert Middlemiss of counsel), for respondent.
Mark Diamond, New York, N.Y., for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz and Robert Middlemiss of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered December 5, 2012, convicting him of attempted criminal possession of a forged instrument in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
As the People correctly concede, the defendant's waiver of his right to appeal was invalid ( see People v. Finnegan, 112 A.D.3d 847, 976 N.Y.S.2d 231;People v. Gil, 109 A.D.3d 484, 970 N.Y.S.2d 88) and, thus, does not foreclose his challenge to the procedures the County Court utilized in adjudicating him a second felony offender. However, the defendant's challenge is unpreserved for appellate review ( see People v. Chase, 101 A.D.3d 1141, 955 N.Y.S.2d 891;People v. Washington, 89 A.D.3d 1140, 1142, 931 N.Y.S.2d 787). In any event, the defendant's challenge is without merit. Although the County Court did not specifically ask the defendant if he wished to controvert the allegations in the second felony offender statement, he acknowledged that he was the person identified in the statement, that he had previously been convicted after trial, that his conviction had not been reversed on appeal, and that he had no basis for challenging the legality or constitutionality of that conviction. Moreover, on appeal, the defendant has not alleged any grounds to controvert the second felony offender statement ( see People v. Jackson, 114 A.D.3d 807, 979 N.Y.S.2d 704). Under these circumstances, the County Court's omission was a harmless oversight ( see People v. Chase, 101 A.D.3d at 1141, 955 N.Y.S.2d 891;People v. McAllister, 47 A.D.3d 731, 731–732, 850 N.Y.S.2d 495;People v. Flores, 40 A.D.3d 876, 878, 836 N.Y.S.2d 273). MASTRO, J.P., LEVENTHAL, CHAMBERS and AUSTIN, JJ., concur.