PEOPLE v. WHALEY (2007)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Ohlig, J.), rendered August 9, 2004, convicting him of attempted burglary in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant has failed to preserve his challenge to the procedures utilized to adjudicate him a second felony offender.   In any event, under all of the circumstances of this case, any error including, inter alia, the court's failure to articulate a finding that the defendant was a second felony offender, was harmless.   Notably, the defendant was made aware of the predicate felony offense, he admitted it, and he evinced no intent, then or now, to controvert it.   Moreover, he received the sentence for which he bargained (see People v. Bouyea, 64 N.Y.2d 1140, 490 N.Y.S.2d 724, 480 N.E.2d 338;  People v. Hickman, 276 A.D.2d 563, 564, 714 N.Y.S.2d 508).

The claim raised in Point One of the defendant's brief is unpreserved for appellate review and, in any event, is without merit (see People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408, 813 N.Y.S.2d 27, 846 N.E.2d 457;  People v. Mahboubian, 74 N.Y.2d 174, 193 n. 3, 544 N.Y.S.2d 769, 543 N.E.2d 34;  People v. Mackey, 49 N.Y.2d 274, 280, 425 N.Y.S.2d 288, 401 N.E.2d 398).   The claim raised in Point Two of the defendant's brief is academic, unpreserved for appellate review, and was forfeited by his plea of guilty (see People v. Hansen, 95 N.Y.2d 227, 230-231, 715 N.Y.S.2d 369, 738 N.E.2d 773;  People v. Iannone, 45 N.Y.2d 589, 597-598, 412 N.Y.S.2d 110, 384 N.E.2d 656;  People v. Skya, 43 A.D.3d 1190, 842 N.Y.S.2d 93;  People v. Lugo, 256 A.D.2d 16, 680 N.Y.S.2d 843).   The claims raised in Points Three and Four of the defendant's brief are unpreserved for appellate review and, in any event, are without merit (see CPL 470.05[2];  People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Weatherly, 246 A.D.2d 340, 340-341, 668 N.Y.S.2d 368;  People v. Cooper, 241 A.D.2d 553, 661 N.Y.S.2d 243;  cf. People v. Brown, 17 A.D.3d 869, 870, 793 N.Y.S.2d 270).