The opinion of the court was delivered by: Read, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Defendant Isaac Diggins, a drug dealer, was convicted after a jury trial of attempted second-degree murder (Penal Law §§ 110.00, 125.25 ), first-degree assault (Penal Law § 120.10 ) and criminal possession of a weapon in the second and third degrees (Penal Law §§ 265.03 , 265.02  [now Penal Law § 265.03 ) in connection with a shooting incident on May 13, 2003. Defendant confessed to the shooting, but claimed that the revolver discharged accidentally. Supreme Court sentenced him as a persistent violent felony offender to an aggregate term of imprisonment of 25 years to life.
On this appeal, we are asked to consider whether defendant was entitled to an evidentiary hearing on his allegation that one of his predicate felony convictions was secured in violation of his constitutional right to counsel. For the reasons that follow, we conclude that Supreme Court did not abuse its discretion by denying defendant an adjournment to gather further evidence in support of his allegation.
At defendant's arraignment in August 2005, the People filed with the court, and served on defendant, a "Statement of Two or More Predicate Felony Convictions." The statement notified defendant of two predicate violent felony convictions: a June 15, 2004 conviction for criminal possession of a weapon in the second degree; and a January 23, 1991 conviction for robbery in the first degree. Trial commenced on November 15, 2005, and the jury convicted defendant on November 22, 2005.
On December 14, 2005 four months after the People filed the persistent violent felony offender statement, and three weeks after the verdict defendant appeared with counsel for sentencing. Defense counsel informed Supreme Court that defendant had a constitutional challenge to the 2004 conviction, which resulted from a trial in absentia because "[a]pparently his defense attorney in that case did not participate in the trial, did not cross-examine witnesses, and did not put forth a defense."
The judge asked defense counsel if he had an affidavit from the lawyer who represented defendant in the 2004 case, or if that lawyer was present. Counsel responded "No" to both queries, and requested an adjournment to "file motions." The judge responded, "Why should I adjourn it? It's a surprise to you? Because we discussed it at great length before the trial," meaning "whether or not [defendant] was a mandatory persistent violent felony offender."
When counsel reiterated that he was challenging the constitutionality of the conviction based on ineffective assistance, the judge interjected that "[d]efendant's obligation is to do more." Counsel then responded as follows:
"I believe I have placed on the record the fact that [the] defense attorney in that case... did not participate in the trial in any meaningful way. I think if you want to explore it further I think we need to ask [the attorney] why that was the case. I believe that is certainly sufficient to raise a presumption. He did not receive effective assistance of counsel, his attorney did not participate in the trial[;] complete lack of participation seemingly would constitute ineffective assistance."
Supreme Court stated that, under appellate case law, a lawyer's deliberate choice not to participate in a trial as a protest does not amount to ineffective assistance, and so "the law [was] against [defendant]." The judge further observed that she was "not hearing anything" from counsel "that says that maybe there was a good thing [the attorney in the 2004 case] could have done once the complaining witness" defendant's wife "showed up in that case." Counsel responded, "I don't know, if you want to give me time to order the minutes of that trial. I can't give you any specifics about the trial."
The judge concluded by observing to defense counsel that he had enjoyed sufficient "time to prepare a meaningful challenge to this previous felony conviction and right now you just sort of tell me, well, I want more time, I'm entitled to more time, and let me just sort of cast around here. I'm still not hearing any reason to think that there is going to be something developed there, so I'm finding the defendant a mandatory persistent felony offender."
The court then sentenced defendant, who appealed both his conviction and his sentence.
The Appellate Division affirmed. As for defendant's sentence, the court concluded that Supreme Court did not err by sentencing him as a persistent violent felony offender "without affording him an adjournment to obtain the transcript of the prior trial and a hearing to determine whether the conviction was unconstitutional" (People v Diggins, 45 AD3d 266, 267 [1st Dept ). The Appellate Division reasoned that defendant "advanced only conclusory allegations, not warranting a hearing, that his conviction for weapons possession was obtained without the effective assistance of counsel" (id. at 268). Further, he "had ample opportunity to obtain the minutes of the prior proceedings for review by the ...