PEOPLE v. ROSS (2006)

 OPINION OF THE COURT

The order of the Appellate Division should be affirmed.

Defendant, serving a 20-year sentence for rape in the first degree and robbery in the first degree, was arrested for possession of a “shank” while incarcerated at Wende Correctional Facility.   Indicted for promoting prison contraband in the first degree and criminal possession of a weapon in the third degree, he pleaded guilty to attempted criminal possession of a weapon in the third degree in satisfaction of the indictment.   At the plea allocution, defendant agreed to be sentenced as a second felony offender.   When the People failed to submit a predicate felony statement (see CPL 400.21[2] ) to the same judge at sentencing, defendant waived receipt of the statement and, upon questioning by the judge, declined to contest his predicate felonies.   The judge proceeded to sentence him, as a second felony offender, to a term of 1 1/212 to 3 years.

 Defendant now maintains that his sentence was illegally imposed.   In order to be lawfully sentenced as a second felony offender, a defendant must have been convicted of a predicate felony, as defined in Penal Law § 70.06(1)(b)(i), within 10 years of the commission of the present felony, subject to tolling for any periods of incarceration (see Penal Law § 70.06[1][b][iv], [v] ).  Because information before the sentencing court established that defendant had been convicted of a known and identified felony within the time required by the statute, his waiver of his rights to receive a predicate felony statement and to controvert its allegations (see CPL 400.21[2], [3] ) was valid.

Defendant's remaining contentions are without merit.

 Order affirmed in a memorandum.

MEMORANDUM.

Chief Judge KAYE and Judges CIPARICK, ROSENBLATT, GRAFFEO, READ and SMITH concur. Judge PIGOTT taking no part.