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People v. Reed

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


April 23, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MARK REED, APPELLANT.

The opinion of the court was delivered by: Lahtinen, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: February 11, 2009

Before: Mercure, J.P., Rose, Lahtinen, Malone Jr. and Kavanagh, JJ.

MEMORANDUM AND ORDER

Appeal, by permission, from an order of the County Court of Albany County (Breslin, J.), entered April 19, 2007, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of criminal possession of a forged instrument in the second degree, without a hearing.

Defendant pleaded guilty to the crime of criminal possession of a forged instrument in the second degree and was sentenced, pursuant to the plea agreement, as a second felony offender to a term of imprisonment of 31/2 to 7 years. Subsequently, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction, claiming that he was improperly sentenced as a second felony offender. County Court denied the motion, prompting this appeal.

We affirm. As defendant's CPL 440.10 motion was limited solely to the validity of his sentence, the motion was properly denied (see CPL 440.10 [2] [d]). In any event, defendant acknowledged that he was convicted of the federal felonies that formed the basis of the special information charging the predicate offense, did not otherwise controvert the use of those convictions or request a hearing and, accordingly, waived his right to challenge the convictions and their validity (see People v Cruz, 56 AD3d 570, 570 [2008]; People v Snare, 11 AD3d 823, 824-825 [2004], lv denied 4 NY3d 748 [2004]).

Mercure, J.P., Rose, Malone Jr. and Kavanagh, JJ., concur.

ORDERED that the order is affirmed.

20090423

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