| People v Johnson |
| 2018 NY Slip Op 00308 [157 AD3d 817] |
| January 17, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Freddie Johnson, Also Known as Frankie Johnson,Appellant. |
Charles T. Glaws, New York, NY, for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Victor Barall ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (MatthewD'Emic, J.), rendered February 9, 2011, convicting him of arson in the second degree, upon hisplea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant pleaded guilty to arson in the second degree, and was sentenced as a secondviolent felony offender (see CPL 400.15). Contrary to the defendant's contention onappeal, the Supreme Court did not err in failing to hold a hearing as to the constitutionality of aprior conviction on which the second violent felony offender adjudication was based. Althoughthe defendant initially indicated that he controverted the allegations of the predicate felonystatement with respect to the constitutionality of the prior conviction, the defendant then decidedto withdraw that challenge, and declined to controvert the allegations of the statement.Accordingly, no hearing was required (see CPL 400.15 [4]).
The defendant's pro se challenge to the factual sufficiency of the plea is unpreserved forappellate review (see People v Lopez, 71 NY2d 662, 665 [1988]). Further, preservationwas required because, contrary to the defendant's contention, the defendant's recitation of thefacts did not negate the element of intent or suggest the possibility of an "intoxication defense" soas to clearly cast significant doubt upon his guilt or otherwise call into question the voluntarinessof the plea (see id. at 666). In any event, the factual allocution was sufficient (see People v Goldstein, 12 NY3d295, 301 [2009]; People vSeeber, 4 NY3d 780, 781 [2005]).
The defendant's contention, in his pro se supplemental brief, that he received ineffectiveassistance of counsel is not reviewable on direct appeal because it involves matter dehors therecord (see People v Love, 57 NY2d 998, 1000 [1982]; People v Williams, 149 AD3d 986[2017]).
The defendant's remaining contentions, raised in counsel's brief and the pro se supplementalbrief, are without merit. Mastro, J.P., Hall, Sgroi and Duffy, JJ., concur.