Opinion
2013-04-26
The PEOPLE of the State of New York, Respondent, v. Joseph WASHINGTON, Defendant–Appellant.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered April 13, 2010. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the second degree. Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (René Juarez of Counsel), for Respondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered April 13, 2010. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the second degree.
Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (René Juarez of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05[2] ). Defendant's challenge to the sufficiency of the CPL 400.21 notice is not preserved for our review ( see People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938;People v. Butler, 96 A.D.3d 1367, 1368, 946 N.Y.S.2d 343,lv. denied20 N.Y.3d 931, 957 N.Y.S.2d 691, 981 N.E.2d 288). In any event, “defendant waived strict compliance with that statute by admitting the prior felony conviction in open court” ( Butler, 96 A.D.3d at 1368, 946 N.Y.S.2d 343;see People v. Guillory, 98 A.D.3d 835, 836, 950 N.Y.S.2d 285,lv. denied20 N.Y.3d 932, 957 N.Y.S.2d 692, 981 N.E.2d 289;People v. Perez, 85 A.D.3d 1538, 1541, 924 N.Y.S.2d 704). Defendant further contends that the People failed to submit sufficient documentation establishing the period of defendant's prior incarceration for purposes of the tolling provision of Penal Law § 70.06(1) (b)(v). That contention is also unpreserved for our review ( cf. Butler, 96 A.D.3d at 1368, 946 N.Y.S.2d 343;see generally People v. Samms, 95 N.Y.2d 52, 57, 710 N.Y.S.2d 310, 731 N.E.2d 1118), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( seeCPL 470.15[3][c] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.