Opinion
May 23, 1988
Appeal from the Supreme Court, Westchester County (Wood, J.).
Ordered that the judgment is affirmed.
The defendant claims that the court erred in adjudicating him a second felony offender based upon his 1971 plea of guilty to burglary in Muscogee County, Georgia. We disagree.
The defendant at the second felony offender hearing controverted the predicate statement and denied that he had been duly convicted of burglary in Georgia. The basis for this denial was that he had not been advised of his constitutional rights (see, Boykin v Alabama, 395 U.S. 238) at the time he pleaded guilty and that there was no showing that he had admitted to each and every element of burglary as defined under New York Law.
Under CPL 400.21 the People have the burden of proving beyond a reasonable doubt the existence of the previous felony conviction (CPL 400.21 [a]) but not its constitutionality. Once the fact of the prior conviction has been established, it is incumbent upon the defendant to prove the facts underlying the claim that the conviction was unconstitutionally obtained (CPL 400.21 [b]; People v Harris, 61 N.Y.2d 9, 15). Moreover, the presumptions of the validity and regularity of previous convictions (People v Smyth, 3 N.Y.2d 184; People v Bell, 36 A.D.2d 406, affd 29 N.Y.2d 882) must be overcome by substantial evidence to the contrary (People v Harris, supra; People v Richetti, 302 N.Y. 290).
As the Court of Appeals noted in People v Harris (supra, at 16-17):
"There is no requirement for a `uniform mandatory catechism of pleading defendants.' (People v Nixon, 21 N.Y.2d 338, 353.) Though a rigorous and detailed colloquy may be appropriate in certain instances, under most ordinary circumstances such questioning by the Trial Judge would be an unnecessary formalism. The seriousness of the crime, the competency, experience and actual participation by counsel, the rationality of the `plea bargain', and the pace of the proceedings in the particular criminal court are among the many factors which the Trial Judge must consider in exercising discretion. (People v Nixon, supra, at p 353.) But as we have emphasized on a previous occasion, `there is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel * * * may nevertheless not know what he is doing.' (People v Francis, 38 N.Y.2d 150, 154.) Overall, a sound discretion, exercised in cases on an individual basis is preferable to a ritualistic uniform procedure. (People v Nixon, supra, at p 355.)
"On the other hand, a record that is silent will not overcome the presumption against waiver by a defendant of constitutionally guaranteed protections. (People v Rodriguez, 50 N.Y.2d 553, 557.) To be sure, the record must show `an intentional relinquishment or abandonment of a known right or privilege.' (Johnson v Zerbst, 304 U.S. 458, 464; Barker v Wingo, 407 U.S. 514, 526.) As the United Supreme Court held in Carnley v Cochran ( 369 U.S. 506, 516): `Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused * * * intelligently and understandingly rejected [his constitutional rights]. Anything less is not waiver.'"
Applying these principles to the case at bar leaves no doubt that the defendant failed to meet his burden of proving the unconstitutionality of his predicate felony conviction. The People at the second felony offender hearing introduced into evidence a certificate of conviction signed by the defendant acknowledging his guilt of the predicate crime of burglary and specifically waiving his Boykin rights. Moreover, although the stenographic minutes from the 1971 plea allocution could not be found, the testimony of the District Attorney from Muscogee County, Georgia, who was an Assistant District Attorney at the time of the plea and who was assigned to the defendant's case, adequately reconstructed the proceeding (cf., People v Glass, 43 N.Y.2d 283; People v Rivera, 39 N.Y.2d 519). Although he had no specific recollection of the defendant's case, his testimony concerning the regular practice of the Judge who took the plea was detailed and specific and it revealed that that Judge adequately questioned the defendant concerning his constitutional rights. It should be noted that the defendant did not put in any evidence to dispute his version of what transpired at that time. Therefore, it is clear that, even in the absence of the transcript, the court correctly found that the defendant made a knowing, intelligent and voluntary waiver of his constitutional rights when he pleaded guilty to burglary in Georgia.
Furthermore, although a prior out-of-State conviction can only be a predicate felony conviction when the conviction is for a crime whose elements are equivalent to those of a New York felony, and only when the out-of-State conviction carried with it an authorized sentence in excess of one year, and a sentence in excess of one year is also authorized for the offense in this State (see, Penal Law § 70.06; People v Sailor, 65 N.Y.2d 224, cert denied 474 U.S. 982; People v Garrett, 130 A.D.2d 505, lv denied 70 N.Y.2d 646), these requirements have been met here. The elements of the Georgia crime of burglary pursuant to which the defendant was convicted are comparable to the elements of the felony of burglary in the third degree in New York (see, Penal Law § 140.20) and in both States sentences of more than one year are authorized. Thus, it is clear that the court did not err in adjudicating the defendant a second felony offender.
Moreover, contrary to the defendant's contentions, after balancing the factors set forth in People v Taranovich ( 37 N.Y.2d 442), we conclude that he was not deprived of his constitutional right to a speedy trial (see also, People v Johnston, 111 A.D.2d 262; People v Manley, 63 A.D.2d 988; People v Camarda, 54 A.D.2d 567).
Finally, prior to the acceptance of his guilty plea herein, the defendant agreed to withdraw all motions in exchange for his plea. Thus, his remaining contentions may not now be raised on appeal (see, People v Williams, 36 N.Y.2d 829, cert denied 423 U.S. 873; People v Feingold, 125 A.D.2d 587, lv denied 69 N.Y.2d 880; People v Colarusso, 103 A.D.2d 848). Mangano, J.P., Thompson, Sullivan and Harwood, JJ., concur.