People v. Alston

289 A.D.2d 339, 734 N.Y.S.2d 583, 2001 N.Y. App. Div. LEXIS 12097

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Gulotta, J.), rendered August 29, 2000, convicting him of criminal sale of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that he was improperly adjudicated a second felony offender is unpreserved for appellate review (see, People v Proctor, 79 NY2d 992; People v Smith, 73 NY2d 961; cf., People v Samms, 95 NY2d 52). In any event, the County Court substantially complied with the requirements of CPL 400.21 (see, People v Bouyea, 64 NY2d 1140). The County Court’s failure to specifically ask the defendant if he wished to controvert the allegations in the predicate felony statement was a harmless oversight, as the defendant admitted he was the person convicted of the prior felony, the sentence promised as part of the plea agreement was based on his status as a second felony offender, and he has not alleged any grounds to controvert the predicate felony statement (see, People v Hickman, 276 AD2d 563; People v Mann, 258 AD2d 738).

The defendant’s challenge to the voluntariness of his plea is unpreserved for appellate review (see, People v Pellegrino, 60 NY2d 636), and in any event, is without merit (see, People v Hickman, supra). O’Brien, J. P., Florio, Schmidt and Smith, JJ., concur.