Opinion
KA 05-01238.
April 28, 2006.
Appeal from a judgment of the Livingston County Court (Ronald A. Cicoria, J.), rendered November 9, 2004. The judgment convicted defendant, upon his plea of guilty, of burglary in the second degree (two counts).
JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
THOMAS E. MORAN, DISTRICT ATTORNEY, GENESEO (ERIC R. SCHIENER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Pigott, Jr., P.J., Hurlbutt, Gorski, Martoche and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of two counts of burglary in the second degree (Penal Law § 140.25), defendant contends that the sentence is illegal because he was improperly sentenced as a second felony offender. We reject that contention. Defendant was explicitly informed during the plea proceeding that he would be sentenced as a second felony offender. He was given notice of the predicate felony during sentencing, and he admitted that he was sentenced to a term of incarceration of 17 years as a result of his conviction of armed burglary in Florida in 1988. Although County Court did not formally ask defendant whether he wished to controvert the allegations in the second felony offender statement ( see CPL 400.21), the record establishes that defendant had an opportunity to do so. Under the circumstances of this case, we conclude that there was the requisite substantial compliance with CPL 400.21 ( see People v. Chrysler, 260 AD2d 945; People v. Polanco, 232 AD2d 674, 675; see also People v. Mann, 258 AD2d 738, 739, lv denied 93 NY2d 900; People v. Witherspoon, 155 AD2d 636).