Opinion
December 18, 1987
Appeal from the Erie County Court, Forma, J.
Present — Dillon, P.J., Doerr, Boomer, Green and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was sentenced as a second felony offender on the basis of a prior conviction for burglary in the third degree in the State of Florida. He contends for the first time on appeal that the sentence is improper because the Florida conviction may not be a predicate felony conviction as defined by statute in New York (Penal Law § 70.06). At the time of sentencing, defendant acknowledged receipt of the formal CPL 400.21 statement notifying him that it appeared by virtue of the Florida burglary conviction that he was a second felony offender. After conferring with his attorney, he admitted the prior felony conviction and did not controvert any part of the statement.
The applicable statute provides that "[u]ncontroverted allegations in the statement shall be deemed to have been admitted by the defendant" (CPL 400.21; see also, People v Sailor, 65 N.Y.2d 224, cert denied 474 U.S. 982). It is well established that when "a defendant voluntarily admits his prior felony conviction and was aware that he was about to face an enhanced sentence, he is estopped from attacking the validity of a sentence imposed under Penal Law § 70.06" (People v Bates, 124 A.D.2d 994, lv denied 69 N.Y.2d 1001; see also, People v Johnson, 118 A.D.2d 1005; People v Williams, 106 A.D.2d 786; People v Hewitt, 97 A.D.2d 828; People v Bove, 70 A.D.2d 545; People ex rel. Ryan v Smith, 50 A.D.2d 1078, appeal dismissed 40 N.Y.2d 988; People v Bryant, 47 A.D.2d 51). We have also held, however, that when it is apparent from an examination of the foreign statute and the corresponding New York statute that the sentence is illegal because the foreign crime does not constitute a felony in New York, the issue is reviewable as a matter of law even though it was not raised before the sentencing court (People v Robinson, 115 A.D.2d 1012).
Here, because defendant did not contest his second felony offender status at sentencing, and because on examination of the relevant statutes it cannot be said as a matter of law that the sentence is illegal, defendant is estopped from contesting the sentence in our court.
We have examined defendant's other contentions and find them to be without merit.