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

484
KA 12-00132
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JOSEPH WASHINGTON, DEFENDANT-APPELLANT.


MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (RENÉ JUAREZ OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered April 13, 2010. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the second
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted assault in the second degree
(Penal Law §§ 110.00, 120.05 [2]). Defendant’s challenge to the
sufficiency of the CPL 400.21 notice is not preserved for our review
(see People v Pellegrino, 60 NY2d 636, 637; People v Butler, 96 AD3d
1367, 1368, lv denied 20 NY3d 931). In any event, “defendant waived
strict compliance with that statute by admitting the prior felony
conviction in open court” (Butler, 96 AD3d at 1368; see People v
Guillory, 98 AD3d 835, 836, lv denied 20 NY3d 932; People v Perez, 85
AD3d 1538, 1541). Defendant further contends that the People failed
to submit sufficient documentation establishing the period of
defendant’s prior incarceration for purposes of the tolling provision
of Penal Law § 70.06 (1) (b) (v). That contention is also unpreserved
for our review (cf. Butler, 96 AD3d at 1368; see generally People v
Samms, 95 NY2d 52, 57), and we decline to exercise our power to review
it as a matter of discretion in the interest of justice (see CPL
470.15 [3] [c]).




Entered:    April 26, 2013                         Frances E. Cafarell
                                                   Clerk of the Court
