PEOPLE v. THOMAS (2023)

DECISION & ORDER

Appeals by the defendant from two judgments of the County Court, Orange County (Hyun Chin Kim, J.), both rendered August 9, 2019, convicting him of burglary in the third degree under Superior Court Information No. 185/21, and attempted burglary in the third degree under Superior Court Information No. 186/21, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

The defendant's contention that the County Court failed to comply with CPL 400.21 before he was sentenced as a second felony offender is unpreserved for appellate review (see CPL 470.05[2];  People v. Proctor, 79 N.Y.2d 992, 994, 584 N.Y.S.2d 435, 594 N.E.2d 929;  People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938;  People v. Smothers, 175 A.D.3d 1441, 1442, 106 N.Y.S.3d 626).  In any event, the defendant's contention is without merit, as the statutory purposes of CPL 400.21 were met and the court complied with the statute (see People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338;  People v. Smothers, 175 A.D.3d at 1442, 106 N.Y.S.3d 626).  The court provided the defendant with notice of the predicate felony statement and an opportunity to be heard.  Furthermore, the defendant admitted the allegations in the predicate felony statement, and there is no indication that the defendant contemplated a challenge to the constitutionality of his prior conviction (see People v. Bouyea, 64 N.Y.2d at 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338;  People v. Santos, 199 A.D.3d 717, 719, 156 N.Y.S.3d 416;  People v. Smothers, 175 A.D.3d at 1442, 106 N.Y.S.3d 626;  People v. Winslow, 100 A.D.3d 1031, 1031, 954 N.Y.S.2d 625).

Moreover, as the defendant does not dispute, he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bryant, 28 N.Y.3d 1094, 1096, 68 N.E.3d 60;  People v. Alvarez, 168 A.D.3d 1090, 1090, 90 N.Y.S.3d 911).  The defendant's valid waiver of his right to appeal precludes appellate review of his contention that, in effect, the sentence imposed for the crime of burglary in the third degree under Superior Court Information No. 185/21 was excessive (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Alvarez, 168 A.D.3d at 1090, 90 N.Y.S.3d 911).

To the extent the defendant contends that the County Court violated his right to due process by imposing the sentences, that contention is unpreserved for appellate review (see People v. Sanford, 173 A.D.3d 906, 907, 99 N.Y.S.3d 885;  People v. Morgan, 27 A.D.3d 579, 810 N.Y.S.2d 369), and, in any event, without merit (see People v. Martinez, 200 A.D.3d 806, 807, 155 N.Y.S.3d 107;  People v. Galvez, 72 A.D.3d 838, 838, 898 N.Y.S.2d 856).

Accordingly, we affirm the judgments.

DUFFY, J.P., MALTESE, DOWLING and WARHIT, JJ., concur.