New York Court of Appeals, 2006

People v. Ross

New York Court of Appeals · Decided December 14, 2006 · Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and Smith Concur Judge Pigott Taking No Part

861 N.E.2d 68; 7 N.Y.3d 905; 828 N.Y.S.2d 253 (North Eastern Reporter, Second Series)

Cases that cite this one

13 later published cases cite this decision.

People v. Kelly (Appellate Division of the Supreme Court of New York 2009)
The People v. Corey Dunton (N.Y. 2024)
The People v. Mark Jurgins (N.Y. 2015)
People v. Hernandez (N.Y. 2025)
People v. Hernandez (N.Y. 2025)
People v. Brown (Appellate Division of the Supreme Court of New York 2021)
People v. Miller (Appellate Division of the Supreme Court of New York 2018)
People v. Miller (Appellate Division of the Supreme Court of New York 2014)
People v. Miller (Appellate Division of the Supreme Court of New York 2014)
PEREZ, JAMIE, PEOPLE v (Appellate Division of the Supreme Court of New York 2011)
People v. Perez (Appellate Division of the Supreme Court of New York 2011)
People v. Adams (Appellate Division of the Supreme Court of New York 2009)
People v. Anthony (Appellate Division of the Supreme Court of New York 2008)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, serving a 20-year sentence for rape in the first degree and robbery in the first degree, was arrested for possession of a “shank” while incarcerated at Wende Correctional Facility. Indicted for promoting prison contraband in the first degree and criminal possession of a weapon in the third degree, he pleaded guilty to attempted criminal possession of a weapon in the third degree in satisfaction of the indictment. At the plea allocution, defendant agreed to be sentenced as a second felony offender. When the People failed to submit a predicate felony statement {see CPL 400.21 [2]) to the same judge at sentencing, defendant waived receipt of the statement and, upon questioning by the judge, declined to contest his predicate felonies. The judge proceeded to sentence him, as a second felony offender, to a term of IV2 to 3 years.

Defendant now maintains that his sentence was illegally imposed. In order to be lawfully sentenced as a second felony offender, a defendant must have been convicted of a predicate felony, as defined in Penal Law § 70.06 (1) (b) (i), within 10 years of the commission of the present felony, subject to tolling for any periods of incarceration {see Penal Law § 70.06 [1] [b] [iv], [v]). Because information before the sentencing court established that defendant had been convicted of a known and identified felony within the time required by the statute, his waiver of his rights to receive a predicate felony statement and to controvert its allegations {see CPL 400.21 [2], [3]) was valid.

Defendant’s remaining contentions are without merit.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and Smith concur; Judge Pigott taking no part.

*907 Order affirmed in a memorandum.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.