People v. Grimes

94 A.D.2d 957, 464 N.Y.S.2d 82, 1983 N.Y. App. Div. LEXIS 18437

Opinion

— Order unanimously reversed, motion granted and defendant remanded to Monroe County Court for resentencing. Memorandum: It was error for the court to deny the People’s motion to sentence defendant as a second felony offender. “A challenge to a plea based on an insufficient factual recitation is to be distinguished from a challenge based on constitutional grounds” and may not properly be raised for the first time in a second felony offender adjudication (People v Perkins, 89 AD2d 956; see, also, People v Fooks, 21 NY2d 338, 350, cert den sub nom. Robinson v New York, 393 US 1067). Nor was any evidence submitted that defendant was denied effective assistance of counsel in the prior proceeding or that there was a “significant possibility” of a conflict of interest as a result of counsel’s joint representation in the prior plea negotiations (People v Monroe, 54 NY2d 35, cert den 455 US 947). (Appeal from order of Monroe County Court, Barr, J. — second felony offender.) Present — Hancock, Jr., J. P., Callahan, Denman, Green and Moule, JJ.