| People v Diggins |
| 2007 NY Slip Op 08281 [45 AD3d 266] |
| November 1, 2007 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v IsaacDiggins, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Gina Mignola of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered December 14,2005, convicting defendant, after a jury trial, of attempted murder in the second degree, assault inthe first degree and criminal possession of a weapon in the second and third degrees, andsentencing him, as a persistent violent felony offender, to an aggregate term of 25 years to life,unanimously affirmed.
In his statement to the police, defendant claimed that he accidentally shot the victim as aresult of defendant's unfamiliarity with revolvers, as opposed to semiautomatic pistols, and amaterial issue at trial was whether the shooting was intentional. Accordingly, the court properlyexercised its discretion in admitting, with suitable instructions, limited uncharged crimesevidence relating to defendant's prior possession of firearms. Defendant's general familiarity withhandguns, including but not limited to revolvers, was highly relevant to refute the claim ofaccident, and the probative value of the evidence outweighed any prejudice to defendant (seegenerally People v Ventimiglia, 52 NY2d 350 [1981]).
Defendant's challenges to the prosecutor's summation are unpreserved, and we decline toreview them in the interest of justice. Were we to review these claims, we would find themwithout merit (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81NY2d 884 [1993]).
We find no merit to defendant's contention that, in sentencing him as a mandatory persistentviolent felony offender, the court erred by accepting a 2004 conviction for criminal possession ofa weapon in the second degree without affording him both an adjournment to obtain thetranscript of the prior trial and a hearing to determine whether the conviction wasunconstitutional. At arraignment, defendant was served with a statement of prior felonyconvictions. Four months later, at sentencing, he alleged that the conviction, in absentia, wasobtained without the effective assistance of counsel, who allegedly failed to put in a defense orotherwise participate in the trial. The People argued that this was a strategy adopted by hisattorney to protest holding trial in defendant's absence and that such strategy does not constituteineffective assistance of counsel (People v Aiken, 45 NY2d 394 [1978]).
A defendant bears the burden to overcome "the presumptions of the validity and [*2]regularity of the previous felony convictions . . . bysubstantial evidence to the contrary" (People v Harris, 61 NY2d 9, 16 [1983]). "Once theprior conviction has been established, it is incumbent upon the defendant to prove the factsunderlying the claim that the conviction was unconstitutionally obtained" (People vRoberson, 160 AD2d 200, 200 [1990], lv denied 76 NY2d 795 [1990]). Normally,the court conducts a review of the transcript of the prior proceedings to assess theconstitutionality of the conviction (see Harris, 61 NY2d at 16-22). However, despitereceiving four months' notice of the People's intention to use his conviction for weaponspossession as a predicate felony, defendant failed to obtain the minutes of the proceedings in thatmatter.
Conclusory allegations are insufficient to support a contention that a prior conviction wasunconstitutionally obtained, and no hearing is required in the absence of supporting evidence(People v Boomer, 187 AD2d 659, 661 [1992], lv denied 81 NY2d 882 [1993];see also People v Myron, 28 AD3d681, 684 [2006], lv dismissed 7 NY3d 850 [2006], cert denied 549 US—, 127 S Ct 1919 [2007]). In the present context, defendant's contention that the court wasobliged to grant him an adjournment to obtain the minutes is unavailing (cf. People vGonzalez, 108 AD2d 622, 623 [1985] [confusion as to predicate crime and when predicatefelony statement was obtained]). A defendant need not be afforded an adjournment to permit himfurther time to "make additional efforts to obtain the minutes of a prior conviction" (People v Rampersant, 1 AD3d122, 123 [2003], lv denied 1 NY3d 600 [2004]).
Defendant has advanced only conclusory allegations, not warranting a hearing, that hisconviction for weapons possession was obtained without the effective assistance of counsel.Defendant had ample opportunity to obtain the minutes of the prior proceedings for review by thesentencing court, which was not required to grant him an adjournment under the circumstances.Finally, even at this juncture, defendant has presented no evidence that the previous convictionwas tainted (cf. id. [defendant supplied minutes in connection with appeal]). Thus, he hasfailed to sustain his burden to demonstrate error. Concur—Tom, J.P., Saxe, Nardelli,Sweeny and Catterson, JJ.