The People, etc., respondent, v. Gregory Mingo, appellant. (2011)

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

The People, etc., respondent, v. Gregory Mingo, appellant.

2008–09304 (Ind.No. 2083 /81)

Decided: June 21, 2011

DANIEL D. ANGIOLILLO, J.P. RUTH C. BALKIN THOMAS A. DICKERSON JEFFREY A. COHEN, JJ.

Steven Banks, New York, N.Y. (Harold V. Ferguson, Jr., of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Anastasia Spanakos of counsel), for respondent. The defendant waived his claim that his adjudication as a second felony offender was improper on the ground that his prior conviction was unconstitutionally obtained because the sentence to which he agreed was illegal, as he did not raise that issue at the resentencing proceeding (see CPL 400.21[7][b];  cf.  People v Ashley, 71 AD3d 1286, 1287,affd16 NY3d 725).   The defendant's claim that the prior conviction was unconstitutionally obtained because the plea of guilty to that crime was coerced is without merit.   Even if the defendant's testimony at the predicate felony offender hearing was credited, it would not establish that the defendant's plea of guilty was not valid (see People v Sanchez–Martinez, 35 AD3d 632, 633;  People v Outer, 197 A.D.2d 543, 544).   The defendant's claim that the Supreme Court had the discretion to resentence him on the counts that were not defective is without merit (see CPL 440.20).   The defendant's claim that the court did not have jurisdiction to resentence him at all is likewise without merit (cf.  People v Lingle, 16 NY3d 621).   The defendant's remaining contention raised in his pro se supplemental brief is not properly before this Court.