| People v Pierre |
| 2007 NY Slip Op 08794 [45 AD3d 1056] |
| November 15, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CliffordPierre, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Eric C. Schwenker of counsel), forrespondent.
Mugglin, J. Appeal from a judgment of the County Court of Warren County (Hall, J.),rendered January 17, 2007, which resentenced defendant following his conviction of the crime ofcriminal possession of a controlled substance in the third degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to criminal possession of acontrolled substance in the third degree and was sentenced as a second felony offender to 5 to 10years in prison. On the occasion of his first appeal, defendant's sentence was vacated due to thePeople's failure to file a second felony offender statement as required by CPL 400.21 (8 AD3d904 [2004], lv denied 3 NY3d 710 [2004]). Upon remittal for resentencing, the Peoplesubmitted the requisite second felony offender statement and defendant admitted the allegationscontained therein. Defendant, however, also informed County Court, through counsel, that he"intends to challenge the constitutionality of the conviction . . . just acknowledged"(30 AD3d 897 [2006]), but County Court made no further inquiry into defendant's assertion andresentenced him, as a second felony offender, to 5 to 10 years in prison. Due to County Court'sfailure to inquire into the nature of defendant's challenge or afford him the opportunity to explainit, the matter was again remitted to County Court for redetermination of his second felonyoffender status and resentencing (id.).
Upon remittal, County Court convened a hearing into defendant's second felony [*2]offender status and defendant's challenge to the constitutionality ofhis prior conviction. In the papers submitted to County Court, defendant asserted that he did notreceive the effective assistance of counsel during the prosecution of his previous felonyconviction. Following the hearing, County Court determined that defendant received the effectiveassistance of counsel on the occasion of his previous conviction and thereafter resentenced himto 5 to 10 years in prison. Defendant now appeals.
Pursuant to CPL 400.21, the People bear the initial burden of proving beyond a reasonabledoubt the existence of a previous felony conviction (see People v Harris, 61 NY2d 9, 15[1983]). "Once the fact of the prior conviction has been established, it is then incumbent upon thedefendant to allege and prove the facts underlying the claim that the conviction wasunconstitutionally obtained" (id. [citation omitted]). Here, the certificate of convictionfiled by the People—and received without objection—satisfied their burden ofproving the existence of the previous felony conviction. The burden was then upon defendant toallege and prove that his previous conviction was unconstitutionally obtained. Upon review ofthe record, the only basis for defendant's claim warranting extended discussion is his assertionthat he informed counsel of his desire to file an appeal but no appeal was filed. In support of thisclaim, defendant presented only an assertion in an affidavit that he was informed of his right toappeal by County Court and that "even though [defendant] told [counsel] [he] wanted to appeal,[counsel] did not file a Notice of Appeal." Defendant presented no other proof and, althoughCounty Court offered him the opportunity to do so, he declined to take the stand at the hearing, orto call witnesses or present any other proof. Under these circumstances, we find defendant'sself-serving affidavit, without more, insufficient to satisfy his burden and overcome "thepresumptions of the validity and regularity of the previous felony conviction[]" (id. at 16;see People v Wheeler, 7 AD3d281, 281 [2004], lv denied 3 NY3d 683 [2004]).
Furthermore, we note that there is no evidence in the record that, once it became clear todefendant that his attorney had not filed a notice of appeal of the conviction at issue—theright to which defendant admits he was informed by County Court, along with the 30-day timelimit—defendant made any effort to pursue an appeal, including by request for anextension of the time to file pursuant to CPL 460.30. Such circumstance limits thepersuasiveness of defendant's present assertion that he wanted to appeal his conviction and thathe communicated this desire to counsel, and that, as a result, his counsel was ineffective (seePeople v McDonough, 87 AD2d 727, 727 [1982]). Thus, inasmuch as defendant failed toprove that his previous conviction was unconstitutionally obtained, we affirm defendant'sresentence.
Defendant's remaining contentions have been considered and found to be without merit.
Cardona, P.J., Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.