People v. Barrino

201 A.D.2d 278, 608 N.Y.S.2d 830, 1994 N.Y. App. Div. LEXIS 889

Opinion

Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered June 2, 1992, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to two terms of 4 Vi to 9 years and 3 to 6 years, respectively, the sentences to run concurrently, unanimously affirmed.

The sentencing court properly rejected defendant’s constitutional challenge to a prior felony conviction, even if the court may have relied too heavily on a purported affirmance of that conviction, the grounds of which were not specified (compare, People v Nalo, 91 AD2d 957, with People v Di Giacomo, 96 AD2d 1127). A defendant is required to "allege and prove the facts underlying the claim that the conviction was unconstitutionally obtained (CPL 400.21, subd 7, par [b])” (People v Harris, 61 NY2d 9, 15). Defendant failed to establish that he received ineffective assistance of counsel at the time of his prior guilty plea, and he never requested time to prepare a proper challenge. Concur — Murphy, P. J., Rosenberger, Wallach, Asch and Williams, JJ.