People v. Smith

Judgment unanimously affirmed. Memorandum: The defendant and his attorney were personally served with the statement as to the predicate felony conviction as required by CPL 400.21. Upon sentence counsel for the defendant by a statement to the court indicated that he was fully informed of the facts concerning the prior felony conviction and his only objection to the sentencing of defendant as a second felony offender was his contention that the predicate felony statute is unconstitutional. In these circumstances there was substantial compliance with the statute, CPL 400.21 (subd 3). (See People v McClain, 35 NY2d 483 ; People v Carter, 31 NY2d 964 ; People v Bryant, 47 AD2d 51 , 63.) (Appeal from judgment of Erie Supreme Court convicting defendant of attempted burglary, third degree.) Present—Marsh, P. J., Mahoney, Dillon, Goldman and Witmer, JJ.