PEOPLE v. QUINONES (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Sullivan County (McGuire, J.), rendered April 2, 2015, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

When this case was previously before this Court, we rejected counsel's Anders brief, withheld decision and assigned new counsel to address at least one issue of arguable merit pertaining to the procedures employed to determine defendant's predicate felony status (153 A.D.3d 1489, 59 N.Y.S.3d 925 [2017] ).  Defendant now asserts that the sentence imposed was invalid because the People failed to comply with the procedural requirements set forth in CPL 400.21.  Defendant's challenge survives his waiver of the right to appeal inasmuch as it implicates the legality of the sentence imposed (see People v. Glynn, 72 A.D.3d 1351, 1351, 899 N.Y.S.2d 442 [2010], lv denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [2010] ).  Nevertheless, the issue, which relates to the procedures employed and not whether he qualifies as a predicate offender, has not been preserved for our review due to his failure to object at sentencing (see People v. Samms, 95 N.Y.2d 52, 58, 710 N.Y.S.2d 310, 731 N.E.2d 1118 [2000];  People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938 [1983];  People v. Williams, 155 A.D.3d 1253, 1255, 64 N.Y.S.3d 742 [2017], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [May 14, 2018];  People v. Berry, 152 A.D.3d 1080, 1080, 56 N.Y.S.3d 476 [2017] ).  Were we to consider the issue, we would find defendant's contention to be without merit.  The record establishes that defendant was aware that he was considered to be a second felony offender and was provided with a special information charging him with a prior felony conviction.  During the plea colloquy, defendant admitted to the prior conviction contained in the special information and, at sentencing, declined to contest his prior felony offense.  Under such circumstances, we would find that there was substantial compliance with the statutory requirements of CPL 400.21 (see People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338 [1985];  People v. Williams, 155 A.D.3d at 1255, 64 N.Y.S.3d 742;  People v. Glynn, 72 A.D.3d at 1352, 899 N.Y.S.2d 442;  People v. Stokely, 49 A.D.3d 966, 968, 853 N.Y.S.2d 221 [2008] ).

ORDERED that the judgment is affirmed.

McCarthy, J.P., Lynch, Clark, Mulvey and Pritzker, JJ., concur.