| People v Alvarado |
| 2009 NY Slip Op 07945 [67 AD3d 430] |
| November 5, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Hector Alvarado, Appellant. |
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Judgment, Supreme Court, New York County (John Cataldo, J.), rendered July 15, 2007,convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as apersistent violent felony offender, to a term of 12 years to life, unanimously affirmed.
Although the court should have permitted defendant to introduce the original civiliancomplainant's hospital records demonstrating his alleged intoxication into evidence, the errorwas harmless under the standards for constitutional or nonconstitutional error (see People vCrimmins, 36 NY2d 230 [1975]). There was overwhelming evidence that defendantassaulted a police officer with intent to prevent him from performing a lawful duty (seePenal Law § 120.05 [3]). The question of the original complainant's intoxication wastangential, and introduction of the records at issue could not have affected the verdict.
Defendant waived his present challenge to the constitutionality of his 2001 predicate felonyby failing to raise the same issue at the time of his adjudication as a persistent violent felonyoffender (see CPL 400.15 [7] [b]; People v Odom, 61 AD3d 896 [2009], lv denied 13 NY3d747 [2009]). In any event defendant's prior conviction was not "obtained in violation of therights of the defendant under the applicable provisions of the constitution of the United States"(CPL 400.15 [7] [b]). Accordingly, we conclude that defendant received effective assistance ofcounsel under the state and federal standards (see People v Benevento, 91 NY2d [*2]708, 713-714 [1998]; see also Strickland v Washington,466 US 668 [1984]) in connection with his persistent violent felony offender adjudication.Concur—Mazzarelli, J.P., Andrias, Friedman, Nardelli and Moskowitz, JJ.