PEOPLE v. FIDLER

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Martin FIDLER, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., SCUDDER, KEHOE, GREEN, AND HAYES, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal contempt in the first degree (Penal Law § 215.51 [c] ).  Defendant failed to preserve for our review his contention that County Court erred in sentencing him as a second felony offender without first determining whether he waived his right to controvert any allegation in the predicate felony statement (see People v. Bonilla, 298 A.D.2d 871, 747 N.Y.S.2d 830, lv. denied 99 N.Y.2d 555, 754 N.Y.S.2d 207, 784 N.E.2d 80, 100 N.Y.2d 536, 763 N.Y.S.2d 1, 793 N.E.2d 415).   In any event, the record establishes that the court substantially complied with the requirements of CPL 400.21 (see Bonilla, 298 A.D.2d 871, 747 N.Y.S.2d 830), and defendant waived strict compliance with the statute by acknowledging his prior conviction and failing to object to the court's finding with respect to that conviction (see People v. Surdis, 23 A.D.3d 841, 844, 805 N.Y.S.2d 433).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: