People v. Marshall

96 A.D.3d 1294, 946 N.Y.S.2d 906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 2012
• Status: Published

Opinion

Kavanagh, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), entered October 19, 2010, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.

Upon defendant’s plea of guilty to the crime of robbery in the second degree, he was sentenced, as a second felony offender, to eight years in prison with five years of postrelease supervision. On this appeal, he argues that he was entitled to a hearing to determine whether the prior conviction relied upon by County Court qualifies him as a second felony offender. However, this argument is encompassed by his valid appeal waiver (see People v Callahan, 80 NY2d 273, 281 [1992]; People v Korber, 89 AD3d 1543, 1544 [2011], lv denied 19 NY3d 864 [2012]; People v Taylor, 73 AD3d 1285, 1286 [2010], lv denied 15 NY3d 810 [2010]) and, in any event, is unpreserved due to his failure to object at sentencing (see People v Smith, 89 AD3d 1328, 1328-1329 [2011]; People v Califano, 84 AD3d 1504, 1506 [2011], lv denied 17 NY3d 805 [2011]).

Rose, J.P., Spain, Malone Jr. and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.