PEOPLE v. SACHS (2001)

 On appeal from a judgment convicting him upon a plea of guilty of burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that County Court (Marks, J.) erred in denying his motion to suppress statements to the police.   We disagree.   The court credited the testimony of the investigator that no promises or threats were made, and the hearing court's assessment of credibility is entitled to great weight (see, People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. Little, 259 A.D.2d 1031, 1032, 688 N.Y.S.2d 313, lv. denied 93 N.Y.2d 926, 693 N.Y.S.2d 510, 715 N.E.2d 513).   Although the investigator indicated that defendant's cooperation would be “well known”, there was no evidence of a promise that defendant would not be prosecuted or that he would receive lenient treatment (see, People v. Huntley, 259 A.D.2d 843, 845-846, 687 N.Y.S.2d 747, lv. denied 93 N.Y.2d 972, 695 N.Y.S.2d 58, 716 N.E.2d 1103;  People v. Williamson, 245 A.D.2d 966, 968, 667 N.Y.S.2d 114, lv. denied 91 N.Y.2d 946, 671 N.Y.S.2d 726, 694 N.E.2d 895).   Defendant failed to preserve for our review his contention that the court failed to comply with CPL 400.15(3) in determining his status as a second violent felony offender (see generally, People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938;  People v. Harris, 246 A.D.2d 401, 666 N.Y.S.2d 427, lv. denied 91 N.Y.2d 926, 670 N.Y.S.2d 407, 693 N.E.2d 754).   In any event, the failure to inform defendant of the right to challenge the constitutionality of predicate felony convictions would not mandate resentencing (see, People v. Hurtado, 160 A.D.2d 654, 654-655, 559 N.Y.S.2d 271, lv. denied 76 N.Y.2d 789, 559 N.Y.S.2d 995, 559 N.E.2d 689).

 The contention of defendant that he was denied his right to testify before the Grand Jury is based on material dehors the record, and thus not susceptible of review (see, People v. Shaw, 221 A.D.2d 265, 635 N.Y.S.2d 465, lv. denied 87 N.Y.2d 977, 642 N.Y.S.2d 206, 664 N.E.2d 1269).   In any event, defendant waived that contention by failing to move to dismiss the indictment pursuant to CPL 190.50(5)(c) (see, People v. Halm, 180 A.D.2d 841, 842, 579 N.Y.S.2d 765, affd. 81 N.Y.2d 819, 595 N.Y.S.2d 380, 611 N.E.2d 281).   In addition, he forfeited that contention by pleading guilty (see, People v. Glaudel, 235 A.D.2d 492, 492-493, 652 N.Y.S.2d 997, lv. denied 89 N.Y.2d 1035, 659 N.Y.S.2d 866, 681 N.E.2d 1313).   Defendant has failed to provide any basis for his contention that the indictment was jurisdictionally defective and, to the extent that he contends that the indictment was duplicitous, that contention was waived by his plea of guilty (see, People v. Beattie, 80 N.Y.2d 840, 842, 587 N.Y.S.2d 585, 600 N.E.2d 216).

Judgment unanimously affirmed.

MEMORANDUM: