Argued November 15, 2006; decided December 14, 2006

People v Ross, 26 AD3d 887, affirmed.

APPEARANCES OF COUNSEL

Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy, David C. Schopp and Barbara J. Davies of counsel), for appellant.

Frank J. Clark, District Attorney, Buffalo (Tina Marie Stanford, Shawn P. Hennessy and J. Michael Marion of counsel), for respondent.

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 [*2]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 1½ 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.{**7 NY3d at 907}

Order affirmed in a memorandum.