| People v Abdus-Samad |
| 2010 NY Slip Op 00558 [69 AD3d 516] |
| January 26, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Saifuddin Abdus-Samad, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Melissa A. Pennington of counsel),for respondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered October30, 2007, convicting defendant, upon his plea of guilty, of attempted robbery in the first degreeand sentencing him, as a persistent violent felony offender, to a term of 16 years to life,unanimously affirmed.
Defendant's valid waiver of his right to appeal forecloses his claim that he was improperlydeprived of a hearing as to the constitutionality of the predicate convictions upon which he wasadjudicated a persistent violent felony offender (see People v Moore, 48 AD3d 222 [2008], lv denied 10NY3d 867 [2008]). The record establishes that defendant discussed the waiver with counsel andunderstood it. Although by the terms of the waiver, as well as by operation of law, defendantretained the right to challenge the legality of his sentence on appeal, his present claim does notinvolve legality. Instead, "defendant's appellate claim [is] addressed merely to the adequacy ofthe procedures the court used to arrive at its sentencing determination," and it is thereforeforeclosed by the waiver (People v Callahan, 80 NY2d 273, 281 [1992]; see alsoPeople v Samms, 95 NY2d 52, 56-58 [2000]).
As an alternative holding, we reject, on the merits, defendant's contention that he wasentitled to a hearing. Defendant was adjudicated a persistent violent felony offender at the pleaproceeding. At that time, he expressly declined to challenge the constitutionality of his predicateconvictions (see CPL 400.15 [3]). Nevertheless, at sentencing, defendant told the court ithad "just come to his attention" that he could make such a challenge. Although the court didnothing to prevent defendant from making a specific challenge, defendant made no attempt to doso. Instead, he merely stated he thought he would need to obtain minutes. Since defendant hadalready been adjudicated a persistent violent felony offender at the plea proceeding, this requestwas untimely under CPL 400.15 (7) (b). Moreover, even if the request had been timely made,"Supreme Court was not required, as a matter of law, to grant defendant an adjournment to try toput together a more persuasive case" (People v Diggins, 11 NY3d 518, 525 [2008]). In addition, whilethe fact that defendant never appealed from either of his prior convictions did not preclude himfrom raising constitutional objections to their use as predicate felony convictions (see People[*2]v Johnson, 196 AD2d 408 [1993], lv denied 82NY2d 806 [1993]), this was still a relevant consideration with regard to the likelihood thataffording defendant an opportunity to gather evidence might yield a meritorious issue.
We have considered and rejected defendant's remaining arguments. Concur—Tom,J.P., Saxe, Nardelli, Renwick and Freedman, JJ.