Opinion
1999-05478, 2000-00036
Submitted September 12, 2002.
October 1, 2002.
Appeal by the defendant from (1) a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered June 1, 1999, convicting him of burglary in the second degree (three counts), upon his plea of guilty, and imposing sentence, and (2) an amended sentence of the same court, imposed December 14, 1999.
Kent V. Moston, Hempstead, N.Y. (Jeremy Goldberg of counsel), for appellant.
Denis Dillon, District Attorney, Mineola, N.Y. (Peter A. Weinstein and Bruce E. Whitney of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, CORNELIUS J. O'BRIEN, HOWARD MILLER, JJ.
ORDERED that the judgment and amended sentence are affirmed.
The defendant was properly adjudicated a second violent felony offender, as he failed to meet his burden of establishing that his prior violent felony conviction was unconstitutionally obtained (see generally People v. Harris, 61 N.Y.2d 9; CPL 400.15[b]). Contrary to the defendant's contention, the transcripts of the prior plea allocution and sentence indicate that the promise of youthful offender treatment was conditioned on his participation in a rehabilitation program and avoiding rearrest. Accordingly, upon his failure to comply with these conditions, the court had the authority to sentence him as an adult without affording him an opportunity to withdraw his plea (see People v. Sanchez, 254 A.D.2d 30; People v. Bailey, 215 A.D.2d 769; see also People v. Figgins, 87 N.Y.2d 840).
The defendant's remaining contentions regarding the adequacy of the prior plea allocution are unpreserved for appellate review, as they were not raised at the hearing to controvert his status as a second violent felony offender (see CPL 470.05). In any event, the defendant failed to establish that the prior plea allocution was constitutionally defective (see People v. McGrath, 43 N.Y.2d 803; People v. Hannon, 209 A.D.2d 319; People v. Boyle, 111 A.D.2d 826).
The court amended the defendant's sentence to increase the period of post-release supervision from 2 ½ years to 5 years based on the defendant's status as a second violent felony offender, as required by Penal Law § 70.45(2). The defendant concedes that the sentence was properly amended in the event his adjudication as a second violent felony offender is upheld on appeal.
ALTMAN, J.P., FLORIO, O'BRIEN and H. MILLER, JJ., concur.