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

486
KA 13-00290
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HECTOR FUENTES, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
OF COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Onondaga County Court (Thomas J. Miller, J.), dated January 15,
2013. The order denied the motion of defendant pursuant to CPL
440.20.

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

     Memorandum: Defendant appeals from an order denying his motion
pursuant to CPL 440.20 seeking to set aside the sentence imposed upon
his conviction of, inter alia, three counts of murder in the second
degree (Penal Law § 125.25 [1], [3]). On defendant’s direct appeal,
we agreed with defendant that County Court (Walsh, J.) erred in
imposing consecutive sentences, and we modified the judgment by
directing that certain of the sentences imposed shall run concurrently
with other sentences (People v Fuentes, 52 AD3d 1297, 1301, lv denied
11 NY3d 736). Defendant contends that County Court (Miller, J.) erred
in denying his instant motion seeking to set aside the sentence
because the sentencing court did not substantially comply with CPL
400.21 in determining that he was a second felony offender. Contrary
to the People’s contention, this issue is not barred because it was
not “previously determined on the merits” on defendant’s direct appeal
(CPL 440.20 [2]). We nevertheless reject defendant’s contention.

     The record establishes that the People failed to file a statement
before sentencing indicating that defendant had a predicate felony
offense (see CPL 400.21 [2]), and that the court failed to make a
finding that defendant “has been subjected to a predicate felony
conviction” (CPL 400.21 [4]). The sentencing record establishes,
however, that defense counsel acknowledged that defendant had a prior
felony conviction of burglary in the third degree and that he pleaded
                                 -2-                           486
                                                         KA 13-00290

guilty to receive the benefit of the sentence (see CPL 400.21 [3]).
We therefore conclude that the error is harmless and that remitting
the matter for the filing of a predicate felony statement and the
court’s finding “would be futile and pointless” (People v Bouyea, 64
NY2d 1140, 1142; see People v Judd, 111 AD3d 1421, 1423, lv denied 23
NY3d 1039; cf. People v Loper, 118 AD3d 1394, 1395-1396, lv denied 25
NY3d 1204).

     Defendant’s further contention that the court failed to comply
with CPL 390.20 (1) by relying on an insufficient presentence report
(PSR) is also without merit. It is undisputed that defendant declined
to discuss his conviction with the probation officer, who then
terminated the interview. The court, however, had the benefit of a
PSR that had been prepared two years earlier and was attached to the
PSR prepared in this matter. The earlier PSR provided the requisite
history and background information for the court’s consideration (see
generally People v Hemingway, 222 AD2d 1102, 1103, lv denied 87 NY2d
1020).




Entered:   June 10, 2016                       Frances E. Cafarell
                                               Clerk of the Court
