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People v. Gathers

Supreme Court of New York, Third Department

May 23, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
DERRICK E. GATHERS, Appellant.

Calendar Date: April 18, 2013

Ameer Benno, Albany, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

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

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered May 13, 2011, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

Defendant pleaded guilty to criminal possession of a weapon in the second degree in full satisfaction of an eight-count indictment and other pending charges. In consideration of his plea, the People and County Court agreed to a prison term of no more than eight years followed by five years of postrelease supervision. At sentencing, defendant admitted to being a predicate felon, and County Court thereafter sentenced him, as a second felony offender, to a prison term of eight years followed by five years of postrelease supervision. Defendant now appeals.

Defendant's initial claim — that County Court failed to comply with the provisions of CPL 400.21 in establishing his status as a second felony offender — is unpreserved for our review as defendant voiced no objection in this regard at sentencing (see People v Walton, 101 A.D.3d 1489, 1490 [2012], lv denied 20 N.Y.3d 1105 [2013]). In any event, the record reflects that defendant was provided with a copy of the predicate felony statement, given an opportunity to be heard with respect to the validity thereof and acknowledged that he committed the prior felonies described therein. Accordingly, we find that there was substantial compliance with the statute (see id. at 1490; People v Winslow, 100 A.D.3d 1031, 1031 [2012]; People v Glynn, 72 A.D.3d 1351, 1352 [2010], lv denied 15 N.Y.3d 773 [2010]). As for defendant's assertions that his plea was not knowing, voluntary and intelligent and that he was denied the effective assistance of counsel, there is nothing in the record to indicate that defendant moved to withdraw the plea or vacate the judgment of conviction; hence, these issues are unpreserved for our review (see People v Bolden, 78 A.D.3d 1419, 1420 [2010], lv denied 16 N.Y.3d 828 [2011]). Further, the narrow exception to the preservation requirement was not triggered here (see People v Caldwell, 80 A.D.3d 998, 998 [2011], lv denied 16 N.Y.3d 857 [2011]; People v Bolden, 78 A.D.3d at 1420).

Finally, as defendant points out, the certificate of conviction and the uniform sentence and commitment sheet incorrectly indicate that defendant was convicted of a class B felony instead of a class C felony (see Penal Law § 265.03) and must be amended accordingly (cf. People v Vasavada, 93 A.D.3d 893, 894 [2012], lv denied 19 N.Y.3d 978 [2012]; People v Martinez, 37 A.D.3d 1099, 1100 [2007], lv denied 8 N.Y.3d 947 [2007]).

Lahtinen, J.P., McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed.


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