People v. Zayas

23 A.D.3d 683, 804 N.Y.S.2d 812

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 2005
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flaherty, J), rendered May 14, 2001, convicting him of burglary in the second degree, criminal mischief in the third degree, possession of burglar’s tools, and resisting arrest, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that he was denied the effective assistance of counsel claiming, inter alia, that his attorney in the Supreme Court did not move for a pretrial hearing to determine whether statements he made to the police were voluntary, and he did not request an instruction charging the jurors to consider the voluntariness of his statements. The defendant also asserts that he was wrongly sentenced as a persistent violent felony offender because, inter alia, the court did not warn him that his pleas of guilty in the prior cases might be used to enhance his sentence if he were to commit a felony in the future.

Viewed in its totality (see People v Baldi, 54 NY2d 137, 147 [1981]), the defendant was afforded effective assistance of counsel at trial.

The defendant’s contention that he was wrongly sentenced is unpreserved for appellate review and, in any event, is without merit (see People v Sullivan, 153 AD2d 223, 232 [1990]; People v Depeyster, 115 AD2d 613 [1985]). Crane, J.P., Ritter, Goldstein and Lifson, JJ, concur.