PEOPLE v. MANN (1999)

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered May 9, 1997, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

Defendant pleaded guilty to the crime of burglary in the second degree in satisfaction of a six-count indictment charging him with various theft-related crimes.   During his plea allocution, defendant specifically waived his right to appeal and was promised a definite sentence of five years in prison as a second felony offender.   Prior to sentencing, defendant sought to be relieved of his counsel and to have new counsel appointed.   This request was granted and defendant's new assigned counsel moved to withdraw the plea, claiming that it was not voluntary and was the product of duress and coercion by, among others, defendant's former counsel.   County Court denied the motion and sentenced defendant in accordance with the plea bargain.   Defendant then brought several unsuccessful motions seeking to vacate the judgment of conviction on various grounds including duress and misrepresentation.   This appeal ensued.

 Initially, we conclude that defendant entered a knowing, intelligent and voluntary plea and waived his right of appeal (see, People v. Williams, 237 A.D.2d 644, 645, 654 N.Y.S.2d 846, lv. denied 90 N.Y.2d 866, 661 N.Y.S.2d 193, 683 N.E.2d 1067).   Notably, defendant responded appropriately during the court proceedings by acknowledging, inter alia, that he understood the ramifications of his plea and waiver and that he was entering the guilty plea voluntarily (see, People v. Dewer, 243 A.D.2d 984, 985, 663 N.Y.S.2d 425, lv. denied 91 N.Y.2d 924, 670 N.Y.S.2d 406, 693 N.E.2d 753).   As for defendant's challenge to the factual sufficiency of his plea, the fact that he admitted entering a “bungalow colony” to steal items instead of stating that he entered a specific bungalow dwelling for this purpose does not negate the propriety of his plea.

 Turning to defendant's challenge to the legality of his sentence, an issue that survives his waiver of the right to appeal (see, People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108;  People v. Pabon, 224 A.D.2d 721, 721-722, 638 N.Y.S.2d 707), we are unpersuaded by defendant's contention that he was improperly sentenced as a second felony offender.   Defendant, who pleaded guilty with the clear understanding that he was to be sentenced to a specific sentence as a second felony offender, was sufficiently given notice of and an opportunity to controvert the allegations made in the second felony offender statement (see, People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338).   Although County Court did fail to formally inquire as to whether defendant wished to controvert the allegations of the second felony offender statement (CPL 400.21[3] ), this oversight was harmless given defendant's admission that he was the person convicted of the prior felony and the absence of any claim that the prior conviction was unconstitutionally obtained (see, People v. Witherspoon, 155 A.D.2d 636, 637, 547 N.Y.S.2d 681).

ORDERED that the judgment is affirmed.

CARPINELLO, J.

MERCURE, J.P., CREW III, PETERS and SPAIN, JJ., concur.