PEOPLE v. CHRYSLER

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

The PEOPLE of the State of New York, Respondent, v. Charles CHRYSLER, Appellant.

Decided: April 29, 1999

Before:  MERCURE, J.P., CREW III, PETERS, SPAIN and CARPINELLO, JJ. Robert F. Whalen, Endicott, for appellant. Robert J. Simpson, District Attorney (Gerald A. Keene of counsel), Owego, for respondent.

Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.), rendered June 5, 1998, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

Defendant pleaded guilty to the crime of burglary in the third degree in satisfaction of a two-count indictment and was sentenced as a second felony offender to a prison term of 21/212 to 5 years.   We reject defendant's claim that he was improperly sentenced as a second felony offender.   Notably, the record indicates that the People filed a CPL 400.21 statement alleging that defendant had previously been convicted within this State of burglary in the third degree, which constituted a predicate felony.   Defendant, who was represented by counsel and consulted with him, clearly indicated that he understood that he was pleading guilty to the instant crime as a second felony offender.   Defendant raised no constitutional or other challenge to County Court's consideration of his prior conviction and, at the time of sentencing, made no objection to being sentenced as a second felony offender.   Thus, defendant 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).  Under these circumstances, we find that there was substantial compliance with CPL 400.21 (see, People v. Mann, 258 A.D.2d 738, 686 N.Y.S.2d 122;  People v. Polanco, 232 A.D.2d 674, 675, 648 N.Y.S.2d 56).

ORDERED that the judgment is affirmed.

MEMORANDUM DECISION.

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