PEOPLE v. MOORE (2008)

Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered April 5, 2007, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 7 years, unanimously affirmed.

 Defendant claims that the sentencing court should not have counted his 1997 conviction as a second violent felony conviction because it was allegedly obtained in violation of his constitutional right to effective counsel, in that counsel failed to seek youthful offender treatment.   Since defendant is not challenging the substantive legality of his sentence, but asserting a procedural defect that can be waived (see People v. Samms, 95 N.Y.2d 52, 56-58, 710 N.Y.S.2d 310, 731 N.E.2d 1118 [2000];  People v. Abruzzese, 30 A.D.3d 219, 220, 816 N.Y.S.2d 464 [2006], lv. denied 7 N.Y.3d 784, 821 N.Y.S.2d 814, 854 N.E.2d 1278 [2006] ), his valid waiver of his right to appeal forecloses that claim.   Further, because he failed to challenge the constitutionality of the 1997 conviction when it was counted as a predicate conviction in 2004, or demonstrate good cause for such failure, he waived any future challenge to the 1997 conviction's constitutionality for sentence enhancement purposes (see People v. Crawford, 204 A.D.2d 203, 612 N.Y.S.2d 28 [1994], lv. denied 84 N.Y.2d 906, 621 N.Y.S.2d 524, 645 N.E.2d 1224 [1994] ).   We also reject defendant's claim on the merits.