Opinion
107827
12-14-2017
The PEOPLE of the State of New York, Respondent, v. Ian STEWART, Appellant.
Andrew Kossover, Public Defender, Kingston (Michael K. Gould of counsel), for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Andrew Kossover, Public Defender, Kingston (Michael K. Gould of counsel), for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Rose, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered July 1, 2017, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.
Defendant waived indictment and pleaded guilty to criminal possession of a controlled substance in the fifth degree pursuant to a plea agreement that required him to execute a waiver of appeal. Defendant was sentenced as a second felony offender to three years in prison, to be followed by three years of postrelease supervision. Defendant now appeals.
We affirm. Defendant's claim that County Court failed to advise him that he could controvert the allegations contained in the prior felony information and that he was, therefore, improperly sentenced as a second felony offender survives his unchallenged waiver of the right to appeal, but is unpreserved due to his failure to object at sentencing despite having the opportunity to do so (see People v. Berry, 152 A.D.3d 1080, 1080–1081 and n., 56 N.Y.S.3d 476 [2017]; People v. Woods, 147 A.D.3d 1156, 1157, 46 N.Y.S.3d 441 [2017],lv denied 29 N.Y.3d 1089, 64 N.Y.S.3d 178, 86 N.E.3d 265 [2017] ; cf. People v. Murdie, 134 A.D.3d 1353, 1354, 21 N.Y.S.3d 762 [2015] ). In any event, defendant was provided with a copy of the prior felony information, indicated that he would not contest the allegations therein and admitted the predicate conviction at sentencing. Accordingly, were the issue properly before us, we would conclude that County Court substantially complied with the requirements of CPL 400.21(3) (see People v. Thorpe, 141 A.D.3d 927, 935, 35 N.Y.S.3d 769 [2016], lv denied 28 N.Y.3d 1031, 45 N.Y.S.3d 383, 68 N.E.3d 112 [2016] ; People v. Wilkins, 118 A.D.3d 1038, 1039, 986 N.Y.S.2d 364 [2014], lv denied 24 N.Y.3d 965, 996 N.Y.S.2d 225, 20 N.E.3d 1005 [2014] ; People v. Walton, 101 A.D.3d 1489, 1490, 956 N.Y.S.2d 705 [2012], lv denied 20 N.Y.3d 1105, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013] ).
ORDERED that the judgment is affirmed.
Egan Jr., J.P., Lynch, Rose, Aarons and Rumsey, JJ., concur.