People v. Aviles

Appellate Division of the Supreme Court of New York

People v. Aviles

303 A.D.2d 297, 755 N.Y.S.2d 841, 2003 N.Y. App. Div. LEXIS 3192

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 25, 2003

StatusPublished

This text of 303 A.D.2d 297 (People v. Aviles) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Aviles, 303 A.D.2d 297, 755 N.Y.S.2d 841, 2003 N.Y. App. Div. LEXIS 3192 (N.Y. Ct. App. 2003).

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Opinion

—Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered June 28, 2000, convicting defendant, upon his plea of guilty, of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.

Defendant was properly adjudicated a persistent violent

felony offender. The record establishes that, after consultation with counsel, defendant expressly withdrew his previous challenges to the constitutionality of his predicate convictions, and that nothing in his colloquy with the court subsequent to the withdrawal revived those challenges in any manner. Accordingly, his claim that the court should have conducted a hearing on these challenges is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant’s vague and conclusory allegations did not warrant a hearing (see People v Harris, 61 NY2d 9, 15 [1983]). To the extent that defendant is claiming ineffective assistance with respect to the instant plea and sentencing proceedings, we find that claim to be unsupported by the record (see People v Benevento, 91 NY2d 708, 713-714 [1998]; People v Ford, 86 NY2d 397, 404 [1995]). Concur — Buckley, P.J., Rosenberger, Lerner, Friedman and Gonzalez, JJ.

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—Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered June 28, 2000, convicting defendant, upon his plea of guilty, of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.

Defendant was properly adjudicated a persistent violent

felony offender. The record establishes that, after consultation with counsel, defendant expressly withdrew his previous challenges to the constitutionality of his predicate convictions, and that nothing in his colloquy with the court subsequent to the withdrawal revived those challenges in any manner. Accordingly, his claim that the court should have conducted a hearing on these challenges is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant’s vague and conclusory allegations did not warrant a hearing (see People v Harris, 61 NY2d 9, 15 [1983]). To the extent that defendant is claiming ineffective assistance with respect to the instant plea and sentencing proceedings, we find that claim to be unsupported by the record (see People v Benevento, 91 NY2d 708, 713-714 [1998]; People v Ford, 86 NY2d 397, 404 [1995]). Concur — Buckley, P.J., Rosenberger, Lerner, Friedman and Gonzalez, JJ.

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Bluebook (online)

303 A.D.2d 297, 755 N.Y.S.2d 841, 2003 N.Y. App. Div. LEXIS 3192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-aviles-nyappdiv-2003.

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