| People v Rincon |
| 2009 NY Slip Op 04012 [62 AD3d 574] |
| May 21, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Hector Rincon, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Britta Gilmore of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Ruth Pickholz, J.), renderedApril 3, 2008, resentencing defendant upon his conviction of criminal sale of a controlledsubstance in the second degree, as a second felony offender, to a term of eight years,unanimously affirmed.
Defendant argues that he is entitled to a hearing regarding his claim that the attorney whorepresented him at his underlying conviction in 2004 rendered ineffective assistance by failing tochallenge the constitutionality of defendant's 1994 predicate conviction. We find this argumentto be procedurally barred as well as without merit.
Defendant previously appealed from his 2004 conviction, as well as from the sentencingcourt's subsequent order which specified and informed defendant that the court would resentencehim pursuant to the Drug Law Reform Act (DLRA) (L 2005, ch 643), to a term of eight years. Apanel of this Court (40 AD3d 538 [2007], lv denied 9 NY3d 880 [2007]) affirmed thejudgment and order, and remanded for resentencing. At resentencing, defendant did not exercisehis right to withdraw his resentencing application. He asserted, however, that he should not besentenced as a second felony offender based on his 1994 conviction because the plea allocutionin that case was constitutionally defective. He also asserted that the statutory bar to such anuntimely claim (see CPL 400.21 [7] [b]; [8]) should not apply because the attorney whorepresented him in 2004 was ineffective for failing to raise the issue.
Initially, we conclude that this ineffective assistance claim is unreviewable on direct appealbecause the record does not explain counsel's reasons for declining to challenge the predicateconviction (see People v Love, 57 NY2d 998 [1982]). Defendant made a pro se CPL440.10 motion to vacate the judgment in which he alleged ineffective assistance, but since he didnot obtain leave to appeal to this Court, the issues raised on that motion are not reviewable(see CPL 450.15 [1]; 460.15; People v Villegas, 298 AD2d 122, 123 [2002],lv denied 99 NY2d 565 [2002]).
Furthermore, even to the extent the existing record permits review of this claim, it is stillprocedurally defective. To the extent reviewable on direct appeal, defendant could have raisedthis issue on his prior appeal to this Court. Instead, defendant challenged his second felony [*2]offender adjudication on different grounds, and raised anineffective assistance claim limited to another aspect of counsel's performance. Moreover, thepertinent portion of the DLRA (L 2005, ch 643, § 1) provides that an appeal from a newsentence imposed under this provision "may be based on the grounds that (i) the term of the newsentence is harsh or excessive; or (ii) that the term of the new sentence is unauthorized as amatter of law." Although we need not decide whether this provision permits a defendant, on anappeal from a resentence, to claim ineffective assistance at resentencing, there is noreason to believe it permits such a defendant to claim ineffective assistance at the originalsentencing (cf. People vWinthrow, 38 AD3d 323 [2007] [DLRA resentencing does not permit defendant torelitigate predicate felony status]).
As an alternative holding, we also reject defendant's ineffective assistance claim on themerits (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]). A challenge to the constitutionality of the 1994 pleawould have been futile (see People v Harris, 61 NY2d 9, 15-16 [1983]), because theminutes of the allocution cast no doubt on defendant's guilt or the voluntariness of his plea(see People v Toxey, 86 NY2d 725 [1995]; People v Moore, 71 NY2d 1002[1988]). Accordingly, it was objectively reasonable for counsel to let the predicate felonyconviction go unchallenged (see People v Lane, 60 NY2d 748, 751 [1983]).
On the present appeal, defendant also argues that the new sentence of eight years isexcessive and should be reduced as an exercise of discretion in the interest of justice. Since theidentical claim was rejected on the prior appeal from the proposed sentence, the present claim isbarred by the doctrine of res judicata (see People v Walker, 265 AD2d 254 [1999], lvdenied 94 NY2d 908 [2000]), and there is nothing in the above-quoted section of the DLRAto suggest that a defendant is entitled to raise the same excessiveness issue twice. As analternative holding, we perceive no basis for reducing the new sentence.Concur—McGuire, J.P., Acosta, DeGrasse, Richter and Abdus-Salaam, JJ.