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

632.1
KA 14-00665
PRESENT: SMITH, J.P., CENTRA, CARNI, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID C. BENSON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Ronald D.
Ploetz, J.), rendered January 27, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in the third degree.

     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 criminal sale of a controlled substance in the third
degree (Penal Law § 220.39 [1]), defendant contends that County Court
improperly adjudicated him a predicate felony offender. We reject
that contention.

     Initially, we agree with defendant’s contention that “the
predicate felony statement filed by the People was insufficient to
support a finding that the defendant had been subjected to a predicate
. . . felony conviction” (People v Nelson, 100 AD3d 785, 785). For a
prior conviction to qualify as a predicate felony conviction, the
sentence for the prior conviction “must have been imposed not more
than ten years before commission of the felony of which the defendant
presently stands convicted” (Penal Law § 70.06 [1] [b] [iv]). The
ten-year period, however, is also extended by a period “equal to the
time served” when defendant was incarcerated for any reason between
the commission of the two pertinent felony convictions (§ 70.06 [1]
[b] [v]). In the instant case, the predicate felony statement alleged
that defendant had previously been subjected to a felony conviction
for a crime, and that sentence was imposed upon that crime 10 years
plus approximately 1,556 days prior to the commission of the present
felony. The predicate felony statement further alleged, however, that
defendant had been incarcerated for only 1,257 days in the interim.
Consequently, even accepting the allegations in the statement as true,
                                 -2-                           632.1
                                                         KA 14-00665

the People failed to allege that defendant had been incarcerated for a
sufficient length of time to bring the previous conviction within the
statutory limit.

     Nevertheless, the record does not support defendant’s further
contention that the court sentenced him as a second felony offender.
Notwithstanding the filing of the predicate felony statement, the
court made no finding that defendant had been subjected to a predicate
felony conviction, nor did it state that it was sentencing defendant
as a second felony offender (cf. CPL 400.21 [4]). Furthermore, the
certificate of conviction does not indicate that the court adjudicated
defendant a predicate felony offender, and the sentence that the court
imposed was within the legal range for a nonpredicate felony drug
offender (see Penal Law § 70.70 [2] [a] [i]). Consequently, we reject
defendant’s contention that the court improperly sentenced him as a
predicate felon.

     Finally, although “[w]e agree with defendant that the waiver of
the right to appeal is invalid because the minimal inquiry made by
[the 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 Jones,
107 AD3d 1589, 1589, lv denied 21 NY3d 1075 [internal quotation marks
omitted]; see People v Callahan, 80 NY2d 273, 283; People v Hassett,
119 AD3d 1443, 1443-1444, lv denied 24 NY3d 961; People v Mobley, 118
AD3d 1336, 1336-1337, lv denied 24 NY3d 1121), we nevertheless reject
defendant’s challenge to the severity of the sentence.




Entered:   July 8, 2016                         Frances E. Cafarell
                                                Clerk of the Court
