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