People v. Cook

117 A.D.2d 993, 499 N.Y.S.2d 292, 1986 N.Y. App. Div. LEXIS 53235

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant challenged the constitutionality of her prior felony conviction at her sentencing as a second felony offender on the ground that she was denied effective assistance of counsel. The People proved the existence of the prior felony conviction (CPL 400.21 [7] [a]), thereby shifting the burden of proof to defendant to show that the prior conviction was unconstitutionally obtained (CPL 400.21 [7] [b]; People v Harris, 61 NY2d 9). Defendant did not request an adjournment for purposes of preparation for a hearing (CPL 400.21 [5], [6]), but merely requested that the court review the transcripts of her prior plea and sentencing hearings. On the record before the sentencing court, we hold that defendant failed to prove that she was deprived of effective assistance of counsel on the prior conviction based upon her attorney’s failure to request that she be adjudicated a youthful offender (see, People v James, 109 AD2d 1095). Consequently, defendant was properly sentenced as a second felony offender. (Appeal from judgment of Monroe County Court, Maloy, J.—grand larceny, third degree.) Present—Callahan, J. P., Doerr, Boomer, Green and Pine, JJ.