Opinion
8114 SCI 1967/16
01-15-2019
The PEOPLE of the State of New York, Respondent, v. Dave TOLBERT, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis), for appellant. Darcel D. Clark, District Attorney, Bronx (Kristian D. Amundsen of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis), for appellant.
Darcel D. Clark, District Attorney, Bronx (Kristian D. Amundsen of counsel), for respondent.
Sweeny, J.P., Richter, Kapnick, Gesmer, Kern, JJ.
We reject the People's argument that defendant's challenge to the facial sufficiency of the predicate felony offender statement required preservation ( People v. Soto, 138 A.D.3d 533, 28 N.Y.S.3d 320 [1st Dept. 2016], lv denied 28 N.Y.3d 937, 40 N.Y.S.3d 364, 63 N.E.3d 84 [2016]. However, any failure of the predicate felony statement to list all relevant periods of incarceration was harmless because the record on appeal, including documents relating to defendant's criminal history, indisputably establishes the necessary aggregate tolling period (see People v. Kelly, 65 A.D.3d 886, 889–890, 885 N.Y.S.2d 52 [1st Dept. 2009], lv denied 13 N.Y.3d 860, 891 N.Y.S.2d 695, 920 N.E.2d 100 [2009] ; compare People v. Soto, 138 A.D.3d at 534, 28 N.Y.S.3d 320 [record did not permit determination of tolling period] ).
Defendant made a valid waiver of his right to appeal (see People v. Bryant, 28 N.Y.3d 1094, 68 N.E.3d 60 [2016] ), which forecloses review of his excessive sentence claim. Regardless of whether defendant validly waived his right to appeal, we perceive no basis for reducing the sentence.