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The People of the State of v. Leslie Marshall

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


June 28, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
LESLIE MARSHALL, APPELLANT.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), entered October 19, 2010, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.

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

MEMORANDUM AND ORDER

Calendar Date: May 21, 2012

Before: Rose, J.P., Spain, Malone Jr., Kavanagh and Egan Jr., JJ.

Upon defendant's plea of guilty to the crime of robbery in the second degree, he was sentenced, as a second felony offender, to eight years in prison with five years of postrelease supervision. On this appeal, he argues that he was entitled to a hearing to determine whether the prior conviction relied upon by County Court qualifies him as a second felony offender. However, this argument is encompassed by his valid appeal waiver (see People v Callahan, 80 NY2d 273, 281 [1992]; People v Korber, 89 AD3d 1543, 1544 [2011], lv denied ___ NY3d ___ [May 4, 2012]; People v Taylor, 73 AD3d 1285, 1286 [2010], lv denied 15 NY3d 810 [2010]) and, in any event, is unpreserved due to his failure to object at sentencing (see People v Smith, 89 AD3d 1328, 1328-1329 [2011]; People v Califano, 84 AD3d 1504, 1506 [2011], lv denied 17 NY3d 805 [2011]).

Rose, J.P., Spain, Malone Jr. and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120628

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