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People v. Carter

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


September 30, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
SHALIEK SUPREME CARTER, APPELLANT.

MEMORANDUM AND ORDER

Calendar Date: August 2, 2010

Before: Peters, J.P., Spain, Stein, McCarthy and Garry, JJ.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered August 17, 2007 in Albany County, convicting defendant upon his plea of guilty of the crime of attempted robbery in the first degree.

Defendant pleaded guilty to the crime of attempted robbery in the first degree and waived his right to appeal. As agreed, Supreme Court thereafter sentenced him, as a second violent felony offender, to a prison term of 13 years and postrelease supervision of five years. Upon this appeal, defendant solely argues that Supreme Court erred in adjudicating him as a second violent felony offender given legal and constitutional problems with his predicate felony conviction. Defendant, however, did not request a hearing on this issue before Supreme Court; indeed, defense counsel reviewed the predicate felony statement and did not controvert it in any way, acknowledging that there was neither an appeal pursued from the prior conviction nor any present basis for challenging it, and admitting that defendant was a predicate felon. Accordingly, defendant waived his right to challenge the legality of the predicate conviction (see CPL 400.21 [3], [7] [b]; People v Ashley, 71 AD3d 1286, 1287 [2010]; People v Cruz, 56 AD3d 570 [2008]; People v Miller, 284 AD2d 724, 724-725 [2001], lvs denied 97 NY2d 678, 685 [2001]; cf. People v Snyder, 105 AD2d 553, 553-554 [1984]).

Peters, J.P., Spain, Stein, McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

20100930

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