People v. Chance

254 A.D.2d 115, 679 N.Y.S.2d 289, 1998 N.Y. App. Div. LEXIS 10828

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1998
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (George Daniels, J., at plea; Joseph Cohen, J., at sentence and resentence), rendered October 24, 1995, convicting defendant of robbery in the second degree and resentencing him, as a second violent felony offender, to a term of 4 to 8 years, unanimously affirmed.

The court properly refused to allow defendant to withdraw his plea and resentenced him as a second violent felony offender. The original sentence promise was rendered unlawful by the discovery of defendant’s status as a second violent felony offender, a fact concealed from the court at the time of the plea and the original sentencing due to use of an alias and passive misrepresentations on the part of defendant (People v Smith, 223 AD2d 465, lv denied 88 NY2d 854).

Despite sufficient opportunity to do so, defendant failed to make sufficient allegations to warrant a hearing on the constitutionality of his prior conviction (see, People v Harris, 61 NY2d 9, 15). Concur — Sullivan, J. P., Wallach, Williams and Saxe, JJ.