Opinion
2012-06-8
The PEOPLE of the State of New York, Respondent, v. Calvin BUTLER, Defendant–Appellant.
Leanne Lapp, Public Defender, Canandaigua (Randolph V. Kruman of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.
Leanne Lapp, Public Defender, Canandaigua (Randolph V. Kruman of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant was convicted upon his plea of guilty of criminal sale of a controlled substance in the fifth degree (Penal Law § 220.31), and he appeals from the resentence on that conviction. Defendant contends that he raised various possible defenses during the plea colloquy and thus that County Court erred in failing to conduct a sufficient inquiry to ensure that the plea was knowingly, voluntarily, and intelligently entered. That contention is unpreserved for our review inasmuch as defendant did not move to withdraw the plea or to vacate the judgment of conviction on that ground ( see People v. Davis, 37 A.D.3d 1179, 1179, 829 N.Y.S.2d 791,lv. denied8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663;People v. Swank, 278 A.D.2d 861, 861, 717 N.Y.S.2d 438,lv. denied96 N.Y.2d 807, 726 N.Y.S.2d 385, 750 N.E.2d 87;see also People v. Simpson, 19 A.D.3d 945, 797 N.Y.S.2d 322), and this case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 because nothing in the plea allocution calls into question the voluntariness of the plea or casts “ significant doubt” upon defendant's guilt ( People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623;see Swank, 278 A.D.2d at 861, 717 N.Y.S.2d 438). In any event, there is no merit to defendant's contention.
We reject the further contention of defendant that his absence from a pretrial conference deprived him of the right to be present at a material stage of the criminal proceeding. Where a proceeding “involves only questions of law or procedure,” a defendant's presence is not required ( People v. Rodriguez, 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293;see People v. Levy, 52 A.D.3d 1025, 1028, 859 N.Y.S.2d 527;People v. Afrika, 13 A.D.3d 1218, 1222, 787 N.Y.S.2d 774,lv. denied4 N.Y.3d 827, 796 N.Y.S.2d 582, 829 N.E.2d 675). Here, we conclude that defendant did not have a right to be present at the conference because “the subject legal discussion did not implicate his peculiar factual knowledge or otherwise present the potential for his meaningful participation” ( People v. Fabricio, 3 N.Y.3d 402, 406, 787 N.Y.S.2d 219, 820 N.E.2d 863;see People v. Robinson, 28 A.D.3d 1126, 1128, 814 N.Y.S.2d 418,lv. denied7 N.Y.3d 794, 821 N.Y.S.2d 824, 854 N.E.2d 1288;People v. Houk, 222 A.D.2d 1074, 1075, 636 N.Y.S.2d 237).
Defendant failed to preserve for our review his contention that the People failed to comply with the procedural requirements of CPL 400.21 when he was resentenced as a second felony drug offender ( see People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938;People v. Mateo, 53 A.D.3d 1111, 1112, 861 N.Y.S.2d 904,lv. denied11 N.Y.3d 791, 866 N.Y.S.2d 617, 896 N.E.2d 103;People v. Beu, 24 A.D.3d 1257, 805 N.Y.S.2d 885,lv. denied6 N.Y.3d 809, 812 N.Y.S.2d 449, 845 N.E.2d 1280). In any event, defendant waived strict compliance with that statute by admitting the prior felony conviction in open court ( see People v. Perez, 85 A.D.3d 1538, 1541, 924 N.Y.S.2d 704;People v. Vega, 49 A.D.3d 1185, 1186, 852 N.Y.S.2d 910,lv. denied10 N.Y.3d 965, 863 N.Y.S.2d 149, 893 N.E.2d 455). Defendant's further contention that he does not qualify as a second felony offender pursuant to Penal Law § 70.06 need not be preserved for our review and thus is properly before us ( see People v. Samms, 95 N.Y.2d 52, 56–57, 710 N.Y.S.2d 310, 731 N.E.2d 1118;People v. Ramos, 45 A.D.3d 702, 703, 850 N.Y.S.2d 107,lv. denied10 N.Y.3d 770, 854 N.Y.S.2d 332, 883 N.E.2d 1267). We conclude, however, that it is without merit. Although defendant's sentence upon the prior felony conviction was imposed more than 10 years before the commission of the present felony, the 10–year period is extended by any period of time during which he was incarcerated ( see § 70.06[1][b] [iv], [v] ), and we therefore conclude that defendant was properly resentenced as a second felony drug offender.
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.