Opinion
KA 00-01459
November 15, 2002.
Appeal from a judgment of Supreme Court, Erie County (Wolfgang, J.), entered May 18, 2000, convicting defendant upon his plea of guilty of attempted criminal possession of a forged instrument in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (THOMAS D. TRBOVICH OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Supreme Court properly found defendant a second felony offender based upon his 1990 conviction of attempted robbery in the second degree. Once the People established the existence of the predicate felony conviction, the burden of proof shifted to defendant to establish that the prior conviction, entered on his guilty plea, was unconstitutionally obtained ( see People v. Lewis, 261 A.D.2d 908, lv denied 93 N.Y.2d 973). Defendant failed to meet that burden. Contrary to the contention of defendant, the record of the 1990 plea allocution establishes that he understood the nature of the charge against him and thus that his plea was voluntary ( see People v. Moore, 71 N.Y.2d 1002, 1005-1006).