People v. Guillory

98 A.D.3d 835, 950 N.Y.S.2d 285

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 17, 2012
• Status: Published

Opinion

— Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered February 27, 2009. The judgment convicted defendant, upon his plea of guilty, of burglary in the third degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him, upon his guilty plea, of burglary in the third degree (Penal Law § 140.20), defendant contends that his sentence must be vacated because he was sentenced as a second felony offender and the People did not file a predicate felony offender statement, as required by CPL 400.21. Defendant failed to preserve that contention for our review (see People v Pellegrino, 60 NY2d 636, [1983]; People v Butler, 96 AD3d 1367, 1368 [2012]; People v Mateo, 53 AD3d 1111, 1112 [2008], lv denied 11 NY3d 791 [2008]). In any event, by admitting in open court that he had been convicted of a prior felony offense in New York within the past 10 years, defendant waived strict compliance with CPL 400.21 (see People v Perez, 85 AD3d 1538, 1541 [2011]; People v Vega, 49 AD3d 1185, 1186 [2008], lv denied 10 NY3d 965 [2008]). Present — Smith, J.P., Fahey, Peradotto, Lindley and Martoche, JJ.