        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

484
KA 09-02374
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CALVIN BUTLER, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (RANDOLPH V. KRUMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Ontario County Court (William F.
Kocher, J.), rendered November 9, 2009. Defendant was resentenced
upon his conviction of criminal sale of a controlled substance in the
fifth degree.

     It is hereby ORDERED that the resentence so appealed from is
unanimously affirmed.

     Memorandum: Defendant was convicted upon his plea of guilty of
criminal sale of a controlled substance in the fifth degree (Penal Law
§ 220.31), and he appeals from the resentence on that conviction.
Defendant contends that he raised various possible defenses during the
plea colloquy and thus that County Court erred in failing to conduct a
sufficient inquiry to ensure that the plea was knowingly, voluntarily,
and intelligently entered. That contention is unpreserved for our
review inasmuch as defendant did not move to withdraw the plea or to
vacate the judgment of conviction on that ground (see People v Davis,
37 AD3d 1179, 1179, lv denied 8 NY3d 983; People v Swank, 278 AD2d
861, 861, lv denied 96 NY2d 807; see also People v Simpson, 19 AD3d
945), and this case does not fall within the rare exception to the
preservation requirement set forth in People v Lopez (71 NY2d 662,
666) because nothing in the plea allocution calls into question the
voluntariness of the plea or casts “significant doubt” upon
defendant’s guilt (People v Lewandowski, 82 AD3d 1602, 1602; see
Swank, 278 AD2d at 861). In any event, there is no merit to
defendant’s contention.

     We reject the further contention of defendant that his absence
from a pretrial conference deprived him of the right to be present at
a material stage of the criminal proceeding. Where a proceeding
“involves only questions of law or procedure,” a defendant’s presence
is not required (People v Rodriguez, 85 NY2d 586, 591; see People v
                                 -2-                          484
                                                        KA 09-02374

Levy, 52 AD3d 1025, 1028; People v Afrika, 13 AD3d 1218, 1222, lv
denied 4 NY3d 827). Here, we conclude that defendant did not have a
right to be present at the conference because “the subject legal
discussion did not implicate his peculiar factual knowledge or
otherwise present the potential for his meaningful participation”
(People v Fabricio, 3 NY3d 402, 406; see People v Robinson, 28 AD3d
1126, 1128, lv denied 7 NY3d 794; People v Houk, 222 AD2d 1074, 1075).

     Defendant failed to preserve for our review his contention that
the People failed to comply with the procedural requirements of CPL
400.21 when he was resentenced as a second felony drug offender (see
People v Pellegrino, 60 NY2d 636, 637; People v Mateo, 53 AD3d 1111,
1112, lv denied 11 NY3d 791; People v Beu, 24 AD3d 1257, lv denied 6
NY3d 809). In any event, defendant waived strict compliance with that
statute by admitting the prior felony conviction in open court (see
People v Perez, 85 AD3d 1538, 1541; People v Vega, 49 AD3d 1185, 1186,
lv denied 10 NY3d 965). Defendant’s further contention that he does
not qualify as a second felony offender pursuant to Penal Law § 70.06
need not be preserved for our review and thus is properly before us
(see People v Samms, 95 NY2d 52, 56-57; People v Ramos, 45 AD3d 702,
703, lv denied 10 NY3d 770). We conclude, however, that it is without
merit. Although defendant’s sentence upon the prior felony conviction
was imposed more than 10 years before the commission of the present
felony, the 10-year period is extended by any period of time during
which he was incarcerated (see § 70.06 [1] [b] [iv], [v]), and we
therefore conclude that defendant was properly resentenced as a second
felony drug offender.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
