Opinion
2014-07-3
The PEOPLE of the State of New York, Respondent, v. Tommy R. JACKSON, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem Of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem Of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from an order that denied his motion pursuant to CPL 440.20 seeking to vacate the sentence imposed upon his conviction of, inter alia, burglary in the third degree (Penal Law § 140.20). We previously affirmed the judgment of conviction upon defendant's appeal therefrom ( People v. Jackson, 71 A.D.3d 1457, 896 N.Y.S.2d 756,lv. denied17 N.Y.3d 774, 929 N.Y.S.2d 76, 952 N.E.2d 1070). Contrary to defendant's contention, County Court properly adjudicated him a persistent felony offender and, therefore, the sentence is not “unauthorized, illegally imposed or otherwise invalid as a matter of law” (CPL 440.20[1] ). Defendant correctly contends that the persistent felony offender (PFO) statement filed by the court pursuant to CPL 400.20(3) listed a 1995 conviction, which had been reversed on appeal by this Court ( People v. Jackson, 226 A.D.2d 1090, 642 N.Y.S.2d 111,lv. denied88 N.Y.2d 1021, 651 N.Y.S.2d 20, 673 N.E.2d 1247), instead of the 1996 conviction following the retrial ( People v. Jackson, 262 A.D.2d 1031, 693 N.Y.S.2d 378,lv. denied94 N.Y.2d 881, 705 N.Y.S.2d 13, 726 N.E.2d 490). That mistake, however, was corrected in a statement filed by the prosecutor and was addressed at the PFO hearing ( see People v. Oliver, 96 A.D.2d 1104, 1105–1106, 467 N.Y.S.2d 76,affd.63 N.Y.2d 973, 483 N.Y.S.2d 992, 473 N.E.2d 242). We thus conclude that any alleged defect in the notice was harmless “inasmuch as defendant received reasonable notice of the accusations against him and was provided an opportunity to be heard with respect to those accusations during the persistent felony offender proceeding” ( People v. Gonzalez, 61 A.D.3d 1428, 1429, 877 N.Y.S.2d 770,lv. denied12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087;see People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338;see e.g. People v. Judd, 111 A.D.3d 1421, 1423, 975 N.Y.S.2d 312;People v. Feliciano, 108 A.D.3d 880, 882, 969 N.Y.S.2d 221,lv. denied22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386;People v. Dawson, 269 A.D.2d 867, 868, 703 N.Y.S.2d 774;People v. Rose, 203 A.D.2d 115, 115–116, 612 N.Y.S.2d 845,lv. denied83 N.Y.2d 971, 616 N.Y.S.2d 24, 639 N.E.2d 764).
Defendant further contends that he was improperly sentenced as a PFO because he did not have a violent criminal history and he has meritorious constitutional challenges to the two predicate convictions. With respect to the constitutionality of the 1988 predicate conviction and defendant's alleged lack of a violent criminal history, defendant failed to raise those contentions in his CPL 440.20 motion and, therefore, they are not properly before us ( see People v. Pennington, 107 A.D.3d 1602, 1604, 966 N.Y.S.2d 803,lv. denied22 N.Y.3d 958, 977 N.Y.S.2d 189, 999 N.E.2d 554).
We have reviewed defendant's remaining contentions and conclude that they lack merit.
It is hereby ORDERED that the order so appealed from is unanimously affirmed.