Opinion
May 28, 1976
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Mahoney, Dillon, Goldman and Witmer, JJ.
Judgment unanimously affirmed. Memorandum: The defendant and his attorney were personally served with the statement as to the predicate felony conviction as required by CPL 400.21. Upon sentence counsel for the defendant by a statement to the court indicated that he was fully informed of the facts concerning the prior felony conviction and his only objection to the sentencing of defendant as a second felony offender was his contention that the predicate felony statute is unconstitutional. In these circumstances there was substantial compliance with the statute, CPL 400.21 (subd 3). (See People v McClain, 35 N.Y.2d 483; People v Carter, 31 N.Y.2d 964; People v Bryant, 47 A.D.2d 51, 63.)