PEOPLE v. POWELL (2018)

Judgment, Supreme Court, New York County (Melissa C. Jackson, J. at motion to preclude conviction;  Michael R. Sonberg, J. at plea and sentencing), rendered August 24, 2015, convicting defendant of persistent sexual abuse, and sentencing him to a term of 11/212 years, unanimously affirmed.

Defendant was not entitled, within this criminal proceeding, to challenge the constitutionality of a prior conviction that was used to elevate the charge to persistent sexual abuse (see People v. Knack, 72 N.Y.2d 825, 530 N.Y.S.2d 541, 526 N.E.2d 32 [1988] ).  Defendant, who asserts that the record of his prior plea establishes its unconstitutionality, could have moved to withdraw that plea, or he could have taken and perfected a timely appeal.  The fact that those opportunities were no longer available at the time of the present prosecution does not entitle defendant to the creation of a new procedural device.

Defendant did not preserve his contention that, in the present case, he was misinformed about the permissible sentencing range, and that the court and counsel were likewise misinformed (see People v. Conceicao, 26 N.Y.3d 375, 44 N.E.3d 199 [2015] ), and we decline to review it in the interest of justice.  As an alternative holding, we find that this claim is unsupported by the record, which indicates that the court had no intention of imposing anything but a prison sentence, and that any mention of defendant receiving the “minimum” sentence referred only to the minimum available prison sentence.

We do not perceive the agreed upon sentence to be excessive.