People v. Hawkes

48 A.D.3d 1075, 849 N.Y.S.2d 839

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2008
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Monroe County (Thomas M. Van Strydonck, J.), rendered January 21, 2005. The judgment convicted defendant, upon her plea of guilty, of grand larceny in the second degree (two counts).

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

Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of two counts of grand larceny in the second degree (Penal Law § 155.40 [1]). Defendant failed to controvert the allegations in the second felony offender statement and thus failed to preserve for our review her contention that Supreme Court erred in sentencing her as a second felony offender based on her 1992 conviction of scheme to defraud in the first degree (§ 190.65; see CPL 400.21 [3]; People v Smith, 73 NY2d 961, 962-963 [1989]). Contrary to defendant’s further contention, the illegal sentence exception to the preservation requirement does not apply herein (see People v Nieves, 2 NY3d 310, 315-316 [2004]). Present—Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.