PEOPLE v. ANDERSON (2006)

Defendant appeals from a judgment convicting him upon a plea of guilty of robbery in the second degree (Penal Law § 160.10[2][a] ).   Defendant failed at the time of sentencing to controvert the allegations in the second felony offender statement filed by the People pursuant to CPL 400.21 and thus failed to preserve for our review his contention that he was improperly sentenced as a second felony offender (see People v. Smith, 73 N.Y.2d 961, 540 N.Y.S.2d 987, 538 N.E.2d 339;  People v. Austin, 1 A.D.3d 957, 957-958, 767 N.Y.S.2d 322, lv. denied 1 N.Y.3d 594, 776 N.Y.S.2d 226, 808 N.E.2d 362;  People v. Duquin, 212 A.D.2d 1059, 624 N.Y.S.2d 1012).   Contrary to the contention of defendant, the narrow exception to the preservation rule does not apply (see People v. Nieves, 2 N.Y.3d 310, 315-316, 778 N.Y.S.2d 751, 811 N.E.2d 13;  cf. People v. Samms, 95 N.Y.2d 52, 55-56, 710 N.Y.S.2d 310, 731 N.E.2d 1118).   In any event, we conclude that there was substantial compliance with CPL 400.21 (see People v. Hughes, 28 A.D.3d 1185, 813 N.Y.S.2d 835, lv. denied 7 N.Y.3d 790, 821 N.Y.S.2d 820, 854 N.E.2d 1284;  People v. Chrysler, 260 A.D.2d 945, 690 N.Y.S.2d 291).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: