PEOPLE v. CRUZ (2006)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Nestor CRUZ, appellant.

Decided: April 18, 2006

HOWARD MILLER, J.P., STEPHEN G. CRANE, DANIEL F. LUCIANO, and REINALDO E. RIVERA, JJ.

Mark Diamond, New York, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered August 13, 2004, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the County Court failed to comply with CPL 400.21 before sentencing him as a second felony offender is unpreserved for appellate review (see People v. Csoke, 11 A.D.3d 631, 782 N.Y.S.2d 657; cf. People v. Proctor, 79 N.Y.2d 992, 994, 584 N.Y.S.2d 435, 594 N.E.2d 929). In any event, the County Court substantially complied with the statute, and there is no indication that the defendant contemplated a challenge to the constitutionality of his prior conviction. Consequently, the alleged deficiencies were harmless oversights (see People v. Hickman, 276 A.D.2d 563, 564, 714 N.Y.S.2d 508; People v. Witherspoon, 155 A.D.2d 636, 637, 547 N.Y.S.2d 681).

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