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

428
KA 12-02199
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JASON L. LOPER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Peter C.
Bradstreet, J.), rendered July 16, 2012. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by vacating the sentence imposed and as
modified the judgment is affirmed, and the matter is remitted to
Steuben County Court for the filing of a predicate felony offender
statement and resentencing.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of burglary in the third degree
(Penal Law § 140.20) and, in appeal No. 2, he appeals from a judgment
convicting him upon a nonjury verdict of attempted burglary in the
third degree (§§ 110.00, 140.20). Defendant’s contention in appeal
No. 1 that his plea was not knowingly, voluntarily, or intelligently
entered because his factual recitation did not specify when or where
he committed the alleged crime is actually a challenge to the factual
sufficiency of the plea allocution, and that contention is not
preserved for our review because he did not move to withdraw his plea
or to vacate the judgment of conviction on that ground. In any event,
we note that defendant’s “ ‘monosyllabic responses to [County Court’s]
questions did not render the plea invalid’ ” (People v Gordon, 98 AD3d
1230, 1230, lv denied 20 NY3d 932).

     With respect to defendant’s contention in appeal No. 1 that the
court erred in failing to permit him to withdraw his guilty plea,
defendant abandoned that contention inasmuch as he withdrew his pro se
motion to withdraw his plea (see People v Mower, 97 NY2d 239, 246;
People v Robbins, 83 AD3d 1531, 1531, lv denied 17 NY3d 821).
                                 -2-                           428
                                                         KA 12-02199

Defendant’s further contention in appeal No. 1 that he was denied
effective assistance of counsel “ ‘does not survive his guilty plea .
. . because there was no showing that the plea bargaining process was
infected by [the] allegedly ineffective assistance or that defendant
entered the plea because of his attorney[’s] allegedly poor
performance’ ” (People v Russell, 55 AD3d 1314, 1314, lv denied 11
NY3d 930; see People v Lugg, 108 AD3d 1074, 1075). In any event,
defendant received “an advantageous plea and nothing in the record
casts doubt upon the apparent effectiveness of counsel” (People v
Ford, 86 NY2d 397, 404; see People v Davis, 99 AD3d 1228, 1229, lv
denied 20 NY3d 1010). We reject defendant’s contention in appeal No.
2 that he was denied effective assistance of counsel. We conclude
that defendant did not “ ‘demonstrate the absence of strategic or
other legitimate explanations’ ” for defense counsel’s failure to
introduce facts in opposition to the People’s recitation of the facts
at the nonjury trial on stipulated facts (People v Benevento, 91 NY2d
708, 712; see People v Howard, 101 AD3d 1749, 1750-1751, lv denied 21
NY3d 944).

     Defendant failed to preserve for our review his contention in
each appeal that the People failed to comply with the procedural
requirements of CPL 400.21 when he was sentenced as a second felony
offender (see People v Pellegrino, 60 NY2d 636, 637; People v Butler,
96 AD3d 1367, 1368, lv denied 20 NY3d 931). We nevertheless exercise
our power to reach that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [3] [c]). The People concede that
they did not file a statement as required by CPL 400.21 (2), and the
record does not reflect that defendant admitted the prior felony in
open court (see People v Butler, 105 AD3d 1408, 1409, lv denied 21
NY3d 1072; cf. Butler, 96 AD3d at 1368). We therefore modify the
judgment in each appeal by vacating the sentence, and we remit the
matter to County Court for the filing of a predicate felony offender
statement pursuant to CPL 400.21 prior to resentencing (see Butler,
105 AD3d at 1409-1410).




Entered:   June 20, 2014                       Frances E. Cafarell
                                               Clerk of the Court
