People v. Whaley — 44 A.D.3d 1079

Majority

p. 1079

The People of the State of New York, Respondent, v John Whaley, Appellant.

[844 NYS2d 390]

Appeal by the defendant from a judgment of the County Court, Suffolk County (Ohlig, J.), rendered August 9, 2004, convicting him of attempted burglary in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant has failed to preserve his challenge to the procedures utilized to adjudicate him a second felony offender. In any event, under all of the circumstances of this case, any error including, inter alia, the court’s failure to articulate a finding that the defendant was a second felony offender, was harmless. Notably, the defendant was made aware of the predicate felony offense, he admitted it, and he evinced no intent, then or now, to controvert it. Moreover, he received the sentence for which he bargained (see People v Bouyea, 64 NY2d 1140 [1985]; People v Hickman, 276 AD2d 563 , 564 [2000]).

p. 1080

The claim raised in point 1 of the defendant’s brief is unpreserved for appellate review and, in any event, is without merit (see People v Baumann & Sons Buses, Inc., 6 NY3d 404 , 408 [2006]; People v Mahboubian, 74 NY2d 174 , 193 n 3 [1989]; People v Mackey, 49 NY2d 274 , 280 [1980]). The claim raised in point two of the defendant’s brief is academic, unpreserved for appellate review, and was forfeited by his plea of guilty (see People v Hansen, 95 NY2d 227 , 230-231 [2000]; People v Iannone, 45 NY2d 589 , 597-598 [1978]; People v Skya, 43 AD3d 1190 [2007]; People v Lugo, 256 AD2d 16 [1998]). The claims raised in points 3 and 4 of the defendant’s brief are unpreserved for appellate review and, in any event, are without merit (see CPL 470.05 [2]; People v Lopez, 71 NY2d 662 , 666 [1988]; People v Weatherly, 246 AD2d 340 , 340-341 [1998]; People v Cooper, 241 AD2d 553 [1997]; cf. People v Brown, 17 AD3d 869 , 870 [2005]). Crane, J.P., Florio, Angiolillo and Carni, JJ., concur.

Cases cited

People v. Bouyea 64 NY2d 1140 N.Y. 1985-05-02 p. 1079
People v. Hickman 276 AD2d 563 N.Y. App. Div. 2000-10-10 at 564 p. 1079
People v. Baumann & Sons Buses, Inc. 6 NY3d 404 N.Y. 2006-03-23 at 408 p. 1080
People v. Mahboubian 74 NY2d 174 N.Y. 1989-06-15 at 193 p. 1080
People v. Mackey 49 NY2d 274 N.Y. 1980-01-10 at 280 p. 1080
People v. Hansen 95 NY2d 227 N.Y. 2000-10-19 at 230-231 p. 1080
People v. Iannone 45 NY2d 589 N.Y. 1978-11-30 at 597-598 p. 1080
People v. Lopez 71 NY2d 662 N.Y. 1988-06-02 at 666 p. 1080
People v. Cooper 241 AD2d 553 N.Y. App. Div. 1997-07-28 p. 1080