PEOPLE v. LEWIS (1999)

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. John LEWIS, Defendant-Appellant.

Decided: May 07, 1999

PRESENT: PINE, J.P., HAYES, PIGOTT, JR., HURLBUTT and CALLAHAN, JJ.

John Tyo, Shortsville, for defendant-appellant. Brian Dennis, Canandaigua, for plaintiff-respondent.

We reject the contention of defendant that County Court improperly adjudicated him a second felony offender. The People proved the existence of the predicate felony conviction (see, CPL 400.21[7][a] ), thereby shifting the burden of proof to defendant to show that the prior conviction was unconstitutionally obtained (see, CPL 400.21[7][b] ); People v. Harris, 61 N.Y.2d 9, 15, 471 N.Y.S.2d 61, 459 N.E.2d 170; People v. Harper, 210 A.D.2d 894, 620 N.Y.S.2d 651; People v. Cook, 117 A.D.2d 993, 499 N.Y.S.2d 292, lv. denied 67 N.Y.2d 941, 502 N.Y.S.2d 1033, 494 N.E.2d 118. From our review of the hearing record, we conclude that defendant failed to establish that he was denied effective assistance of counsel on the prior conviction because of his attorney's failure to make motions (see generally, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Judgment unanimously affirmed.

MEMORANDUM:

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