| People v Johnson |
| 2009 NY Slip Op 01502 [59 AD3d 738] |
| February 24, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MarkJohnson, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Molea, J.), rendered April 26, 2007, convicting him of attempted criminal possession of acontrolled substance in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court erred in sentencing him as a secondfelony offender because a prior conviction in the State of Connecticut did not constitute a felonyconviction for the purposes of New York's predicate felony sentencing guidelines is notpreserved for appellate review. The defendant did not controvert the allegations in the predicatefelony statement, request a hearing thereon, or object to the procedures used by the court indetermining his status (see e.g. People vCsoke, 11 AD3d 631 [2004]; People v Bryant, 2 AD3d 741 [2003]). The defendant also failed tomove for leave to withdraw his plea on this ground (see People v Rodriguez, 51 AD3d 1043 [2008]).
Moreover, the defendant's claim of ineffective assistance of counsel is not properly beforethis Court inasmuch as it is based upon matter dehors the record, i.e., factual claims developed inthe defendant's CPL 440.20 motion to set aside his sentence, which was denied by the SupremeCourt and from which order he was denied leave to appeal (see e.g. People v Singh, 40 AD3d 1015 [2007]; People vSain, 261 AD2d 488 [1999]; People v McKane, 222 AD2d 458 [1995]). Rivera, J.P.,Dillon, Miller, Balkin and Leventhal, JJ., concur.