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People v. Provencher

State of New York Supreme Court, Appellate Division Third Judicial Department


April 1, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
SEAN D. PROVENCHER, APPELLANT.

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

MEMORANDUM AND ORDER

Calendar Date: February 11, 2010

Before: Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ.

Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.), rendered September 14, 2007, convicting defendant upon his plea of guilty of the crime of attempted grand larceny in the third degree.

In full satisfaction of a two-count indictment, defendant pleaded guilty to the crime of attempted grand larceny in the third degree. Pursuant to the plea agreement, defendant was sentenced to a prison term of 11/2 to 3 years, with the sentence to run concurrently with sentences imposed in Albany County and Saratoga County. Defendant now appeals.

We affirm. Defendant's contention that he was sentenced as a second felony offender without being afforded a hearing pursuant to CPL 400.21 is without merit. The People presented evidence that defendant was convicted of a felony in 2006. Although defendant initially informed County Court at sentencing that he was challenging the constitutionality of the predicate conviction, when the court further inquired as to the nature of his challenge, defendant withdrew it. Inasmuch as defendant was provided an opportunity to challenge his prior conviction and voluntarily waived it, he cannot now argue that he was deprived of his right to a hearing pursuant to CPL 400.21 (see People v West, 181 AD2d 945, 945 [1992]).

Mercure, J.P., Malone Jr., McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

20100401

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