Opinion
October 26, 1984
Appeal from the Supreme Court, Kings County (Owens, J.).
Judgment affirmed.
The sentencing of defendant as a second violent felony offender pursuant to section 70.04 Penal of the Penal Law did not violate the prohibition upon the enactment of ex post facto laws contained in section 10 of article I of the United States Constitution. The sentence imposed in no way affects the punishment for the crime which defendant committed in 1971. The enhanced punishment was only for the crime of which defendant now stands convicted, which is considered to be an aggravated offense because a repetitive one ( People v Morse, 62 N.Y.2d 205, 217-218; People v Aiello, 93 A.D.2d 864, app dsmd 61 N.Y.2d 760; cf. People v Thompson, 55 A.D.2d 528).
Defendant's prior conviction upon which a reformatory sentence was imposed meets all the criteria set forth in section 70.04 (subd. 1, par [b], cl [i]) of the Penal Law. The statute makes no distinction between the various correctional facilities in which an accused may have been confined, but rather specifies, in relevant part, that the predicate violent felony be one for which "a sentence to a term of imprisonment in excess of one year * * * was authorized".
There is no indication in the record that the court did not exercise sound discretion in accepting defendant's guilty plea ( People v Nixon, 21 N.Y.2d 338, 353, cert. den. sub nom. Robinson v New York, 393 U.S. 1067; People v Harris, 61 N.Y.2d 9, 16-17). Neither does the record demonstrate that defendant was denied his right to effective assistance of counsel ( People v De Mauro, 48 N.Y.2d 892; People v Shannon, 92 A.D.2d 554; cf. People v Brown, 45 N.Y.2d 852). Defendant, if so advised, may pursue this claim by a postconviction proceeding brought under CPL 440.10.
The sentence imposed upon defendant as a second violent felony offender was not excessive under the facts of this case ( People v Suitte, 90 A.D.2d 80). Brown, J.P., Niehoff, Rubin and Eiber, JJ., concur.