PEOPLE v. WHEELER (2004)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Woodrow WHEELER, Defendant-Appellant.

Decided: May 06, 2004

TOM, J.P., SAXE, LERNER, MARLOW, GONZALEZ, JJ.

Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), for appellant. Woodrow Wheeler, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Alice Wiseman of counsel), for respondent.

Judgment of resentence, Supreme Court, New York County (John A.K. Bradley, J.), rendered April 10, 2002, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.

The court properly sentenced defendant as a persistent violent felony offender. Defendant did not establish a factual basis for his constitutional challenge to a 1989 felony conviction. Defendant's assertion that he “believed” that he “would have” instructed his attorney to file a notice of appeal from that conviction is factually insufficient to support his claim that his attorney rendered ineffective assistance by disregarding a direct instruction to file such a notice (see Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985).

We have considered and rejected defendant's remaining arguments, including those contained in his pro se supplemental brief.

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