People v. Hodges

194 A.D.2d 484, 599 N.Y.S.2d 972, 1993 N.Y. App. Div. LEXIS 6806

Opinion

—Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered September 6, 1990, convicting defendant, after a plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a prison term of 2V¿ to 5 years, unanimously affirmed.

Defendant was properly found to be a second violent felony offender. The sentencing minutes of the prior case are not available, but the plea minutes of the prior case show that the court’s promise to impose a sentence of probation was conditional. Also, the record shows that approximately four months elapsed between the date of the plea and the imposition of sentence, although the presentence report was available within five weeks. On these facts, and in the face of defendant’s extensive criminal record, defendant’s bald assertion that he did not receive the promised sentence does not satisfy the burden of establishing that his prior conviction was unconstitutionally obtained. It was incumbent on defendant to come forward to prove his claim (CPL 400.21 [7] [b]), and the trial court did not err by relying on the presumption of regularity. Concur—Carro, J. P., Ellerin, Rubin and Nardelli, JJ.