PEOPLE v. DORRAH (2008)

 Defendant appeals from a judgment convicting him upon a plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ).   Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. McKay, 5 A.D.3d 1040, 773 N.Y.S.2d 923, lv. denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474).   In any event, that challenge is without merit.  “Contrary to the contention of defendant, his terse answers to questioning by [Supreme] Court do not indicate that he lacked an understanding of the nature and consequences of his plea ․ The record establishes that defendant admitted the essential elements of the ․ count[ ] of the indictment [to which he pleaded guilty] and thus his factual allocution is legally sufficient” (People v. Emm, 23 A.D.3d 983, 984, 804 N.Y.S.2d 880, lv. denied 6 N.Y.3d 775, 811 N.Y.S.2d 342, 844 N.E.2d 797).

 Defendant also failed to preserve for our review his contention that he was illegally sentenced based on the People's failure to file a second felony offender statement pursuant to CPL 400.21(2) (see People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938;  People v. Simpson, 35 A.D.3d 1182, 1183, 826 N.Y.S.2d 547, lv. denied 8 N.Y.3d 990, 838 N.Y.S.2d 494, 869 N.E.2d 670;  People v. Beu, 24 A.D.3d 1257, 805 N.Y.S.2d 885, lv. denied 6 N.Y.3d 809, 812 N.Y.S.2d 449, 845 N.E.2d 1280).   In any event, that contention lacks merit inasmuch as the court substantially complied with the statute (see Beu, 24 A.D.3d 1257, 805 N.Y.S.2d 885;  People v. Nevins, 16 A.D.3d 1046, 1048, 791 N.Y.S.2d 771, lv. denied 4 N.Y.3d 889, 798 N.Y.S.2d 734, 831 N.E.2d 979, cert. denied 548 U.S. 911, 126 S.Ct. 2938, 165 L.Ed.2d 963;  see also People v. Bonilla, 298 A.D.2d 871, 747 N.Y.S.2d 830, lv. denied 99 N.Y.2d 555, 754 N.Y.S.2d 207, 784 N.E.2d 80, 100 N.Y.2d 536, 763 N.Y.S.2d 1, 793 N.E.2d 415), and defendant stipulated that he would be sentenced as a second felony offender (see People v. Harris, 61 N.Y.2d 9, 20, 471 N.Y.S.2d 61, 459 N.E.2d 170).

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

MEMORANDUM: