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

471
KA 12-01616
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GERRARD BLACKNELL, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered December 18, 2006. The judgment convicted
defendant, upon his plea of guilty, of attempted aggravated assault
upon a police officer or a peace officer.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted aggravated assault upon a police officer
or a peace officer (Penal Law §§ 110.00, 120.11), defendant contends
that his waiver of the right to appeal is not valid. We agree.
“[T]he minimal inquiry made by County Court was insufficient to
establish that the court engage[d] the defendant in an adequate
colloquy to ensure that the waiver of the right to appeal was a
knowing and voluntary choice” (People v Box, 96 AD3d 1570, 1571, lv
denied 19 NY3d 1024 [internal quotation marks omitted]; see People v
Jones, 107 AD3d 1589, 1589-1590, lv denied 21 NY3d 1075), and the
court “conflated the waiver of the right to appeal with the rights
forfeited by defendant based on his guilty plea” (People v Tate, 83
AD3d 1467, 1467; cf. People v Boatman, 110 AD3d 1463, 1463, lv denied
22 NY3d 1039). Nevertheless, we affirm.

     Defendant failed to move to withdraw his plea or to vacate the
judgment of conviction, and thus he failed to preserve for our review
his contention that the plea allocution was factually insufficient
(see People v Lopez, 71 NY2d 662, 665). In any event, that contention
is without merit because “there is no requirement that defendant
recite the underlying facts of the crime to which he is pleading
guilty” (People v Bailey, 49 AD3d 1258, 1259, lv denied 10 NY3d 932).
Furthermore, the court recited the facts underlying the crime, and
“ ‘[t]he record establishes that defendant confirmed the accuracy of
                                 -2-                           471
                                                         KA 12-01616

[the court’s] recitation’ ” (People v Bullock, 78 AD3d 1697, 1698, lv
denied 16 NY3d 742; see People v Gordon, 98 AD3d 1230, 1230, lv denied
20 NY3d 932).

     Contrary to defendant’s further contention, the court did not err
in refusing to suppress his statements to the police. “The People met
‘their initial burden of establishing the legality of the police
conduct and defendant’s waiver of rights,’ and defendant failed to
establish that he did not waive those rights, or that the waiver was
not knowing, voluntary and intelligent” (People v Grady, 6 AD3d 1149,
1150, lv denied 3 NY3d 641; see People v Andrus, 77 AD3d 1283, 1283,
lv denied 16 NY3d 827; see also People v Pratchett, 90 AD3d 1678,
1679, lv denied 18 NY3d 997).

     Finally, defendant failed to preserve for our review his
contention that the court erred in sentencing him as a persistent
violent felony offender (see People v Proctor, 79 NY2d 992, 994). In
any event, we reject that contention. The statute provides that the
People must file a statement prior to sentencing indicating that
defendant may have previously been convicted of a violent felony
offense (see CPL 400.15 [2]). “A defendant who wishes to controvert
the allegations ‘must specify the particular allegation or allegations
he wishes to controvert’ or they are deemed admitted . . . Where the
‘uncontroverted allegations [in the predicate violent felony
statement] . . . are sufficient to support a finding that the
defendant has been subjected to a predicate violent felony conviction
the court must enter such finding’ and sentence defendant accordingly”
(People v Konstantinides, 14 NY3d 1, 14, quoting CPL 400.15 [3], [4]).
Here, the record reflects that, prior to sentencing, defense counsel
was provided with a statement alleging that defendant had previously
been convicted of three felonies, including the violent felonies of
assault in the second degree and robbery in the second degree. The
record further reflects that, “defendant, in the presence of counsel,
declined to challenge any part of the People’s persistent violent
felony offender statement” (People v Buel, 53 AD3d 930, 932).
Consequently, the allegations in the statement were properly deemed
admitted, and the court properly sentenced defendant as a persistent
violent felony offender.




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
