People v. Hummel

• Citation: 7 N.Y.S.3d 701,127 A.D.3d 1506,2015 N.Y. Slip Op. 03581
• Decision Date: 30 April 2015
• Docket Number: 106300.
• Parties: The PEOPLE of the State of New York, Respondent, v. Dustin R. HUMMEL, Appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1506

7 N.Y.S.3d 701

2015 N.Y. Slip Op. 03581

The PEOPLE of the State of New York, Respondent

v.Dustin R. HUMMEL, Appellant.

106300.

Supreme Court, Appellate Division, Third Department, New York.

April 30, 2015.

John R. Trice, Elmira, for appellant.

John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., LYNCH and CLARK, JJ.

Opinion

CLARK, J.

Appeal from a judgment of the County Court of Otsego County (Burns, J.), rendered June 14, 2013, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and purportedly waived his right to appeal. The plea agreement contemplated that defendant would be sentenced, as a second felony offender, to 4 ½ years in prison to be followed by two years of postrelease supervision. County Court imposed that sentence, and defendant now appeals.

We affirm. Defendant's contention that the motion practice and discovery efforts of defense counsel amounted to ineffective assistance was “forfeited by his guilty plea, as a defendant who enters a plea and admits guilt ‘may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered’ ” (People v. Trombley, 91 A.D.3d 1197, 1201, 937 N.Y.S.2d 665 [2012], lv. denied 21 N.Y.3d 914, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013], quoting People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ). Defendant further asserts that he was improperly sentenced as a second felony offender, inasmuch as he was deprived of the opportunity to contest the allegations contained in the prior felony information as required by CPL 400.21(3). This claim is unpreserved for our review given defendant's failure to object at sentencing (see People v. House, 119 A.D.3d 1289, 1290, 989 N.Y.S.2d 919 [2014] ; People v. Morse, 111 A.D.3d 1161, 1161, 975 N.Y.S.2d 496 [2013], lv. denied 23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509 [2014] ). In any event, because a second felony offender statement was filed by the People and defendant was well aware that he would be sentenced as a second felony offender when he entered his guilty plea, we find that there was substantial compliance with CPL 400.21 (see People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338 [1985] ; People v. Chrysler, 260 A.D.2d 945, 945–946, 690 N.Y.S.2d 291 [1999] ; People v. Mann, 258 A.D.2d 738, 739, 686 N.Y.S.2d 122 [1999], lv....