People v. Levine

257 A.D.2d 478, 684 N.Y.S.2d 520, 1999 N.Y. App. Div. LEXIS 454

Opinion

—Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered October 22,1996, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.

Defendant was not entitled to a hearing when he raised constitutional challenges to each of his two prior convictions. Defendant was precluded from contesting the use of his 1983 conviction as a predicate conviction since he had previously been adjudicated a second violent felony offender in 1988 based on that conviction and failed to seek review of that adjudication by direct appeal or appropriate post-judgment motion (People v Loughlin, 66 NY2d 633, 635-636). Such preclusion resulted from operation of the applicable statutes (CPL 400.15 [8]; 400.16 [2]) and there was no requirement that the 1988 proceedings contain an express waiver of the right to challenge the 1983 conviction. With respect to the 1988 conviction, defendant was not entitled to a hearing on his claim that the plea resulted from “coercion” by counsel, since the alleged coercion consisted of nothing more than a warning of the risks of proceeding to trial (see, People v Spinks, 227 AD2d 310, lv denied 88 NY2d 995). Concur—Sullivan, J. P., Nardelli, Rubin and Mazzarelli, JJ.