People v. Wilson

199 A.D.3d 1130

154 N.Y.S.3d 285 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Keith D. WILSON, Appellant.

111811

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

Calendar Date: October 8, 2021

Decided and Entered: November 10, 2021

Eric M. Galarneau, Albany, for appellant.

Kirk O. Martin, District Attorney, Owego (Torrance L. Schmitz of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Tioga County (Keene, J.), rendered March 15, 2019, convicting defendant upon his plea of guilty of the crime of criminal contempt in the first degree.

In full satisfaction of a single-count indictment and other pending charges, defendant pleaded guilty to criminal contempt in the first degree with the understanding that he would be sentenced to a prison term of 1½ to 3 years – the minimum term of imprisonment for a second felony offender (see Penal Law §§ 70.06[3][e] ; [4][b]; 215.51[b][v]). When defendant subsequently appeared for sentencing, County Court afforded defendant the opportunity to challenge the predicate felony statement filed by the People. Defendant declined that opportunity and admitted the prior felony conviction, and County Court imposed the contemplated term of imprisonment. This appeal ensued.

Defendant's sole argument upon appeal – that his "waiver" of the right to challenge the predicate felony statement was involuntary in light of County Court's failure to fully comply with the requirements of CPL 400.21 – is unpreserved for our review, as defendant raised no objection in this regard at the time of sentencing (see People v. Carrington, 194 A.D.3d 1253, 1254–1255, 147 N.Y.S.3d 268 [2021] ; People v. Iorio, 188 A.D.3d 1352, 1354, 135 N.Y.S.3d 199 [2020], lv denied 36 N.Y.3d 1051, 140 N.Y.S.3d 894, 164 N.E.3d 981 [2021] ; People v. Huntley, 177 A.D.3d 1032, 1034, 114 N.Y.S.3d 484 [2019], lv denied 34 N.Y.3d 1131, 118 N.Y.S.3d 553, 141 N.E.3d 509 [2020] ; People v. Small, 174 A.D.3d 1130, 1132–1133, 105 N.Y.S.3d 211 [2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 630, 134 N.E.3d 629 [2019] ). To the extent that defendant contends that the sentence imposed was unauthorized and, hence, preservation was not required, we disagree, as defendant's challenge "is to the procedures employed and not whether he qualifies as a predicate offender" ( People v. Berry, 152 A.D.3d 1080, 1081 n., 56 N.Y.S.3d 476 [2017] ; see People v. Quinones, 162 A.D.3d 1402, 1403, 79 N.Y.S.3d 760 [2018] ). Accordingly, the...