People v. Ross

138 A.D.2d 543, 526 N.Y.S.2d 39, 1988 N.Y. App. Div. LEXIS 2811

Opinion

Appeal by the defendant from two judgments of the Supreme Court, Queens County (Rotker, J.), both rendered September 30, 1985, convicting him of criminal sale of a controlled substance in the fifth degree, and criminal possession of a controlled substance in the fifth degree under indictment No. 5104/84, upon his plea of guilty, and of grand larceny in the third degree and jostling under indictment No. 3347/85, upon his plea of guilty, and imposing sentences.

Ordered that the judgments are affirmed.

The Supreme Court properly denied the defendant’s motion to withdraw his guilty pleas. The defendant’s sole ground for seeking vacatur of the pleas was that he had been improperly adjudicated a second felony offender. As this claim had no connection to the validity of the guilty pleas, there was no legal basis for granting the motion.

Similarly, the Supreme Court properly declined to hold a hearing concerning the defendant’s status as a second felony offender. The defendant admitted that he had previously been adjudicated a second felony offender and that he did not appeal or otherwise challenge that finding. Therefore, pursuant to CPL 400.21 (8), the prior finding was binding at the sentencing in this case, and the issues raised were not open for review (People v Loughlin, 66 NY2d 633, 636, rearg denied 66 NY2d 916; People v Morcilio, 91 AD2d 1074). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur.