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People v. Johnson

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


February 24, 2009

THE PEOPLE, ETC., RESPONDENT,
v.
MARK JOHNSON, APPELLANT.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Molea, J.), rendered April 26, 2007, convicting him of attempted criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

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.

REINALDO E. RIVERA, J.P., MARK C. DILLON, HOWARD MILLER, RUTH C. BALKIN and JOHN M. LEVENTHAL, JJ.

(Ind. No. 06-00569)

DECISION & ORDER

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court erred in sentencing him as a second felony offender because a prior conviction in the State of Connecticut did not constitute a felony conviction for the purposes of New York's predicate felony sentencing guidelines is not preserved for appellate review. The defendant did not controvert the allegations in the predicate felony statement, request a hearing thereon, or object to the procedures used by the court in determining his status (see e.g. People v Csoke, 11 AD3d 631; People v Bryant, 2 AD3d 741). The defendant also failed to move for leave to withdraw his plea on this ground (see People v Rodriguez, 51 AD3d 1043).

Moreover, the defendant's claim of ineffective assistance of counsel is not properly before this Court inasmuch as it is based upon matter dehors the record, i.e., factual claims developed in the defendant's CPL 440.20 motion to set aside his sentence, which was denied by the Supreme Court and from which order he was denied leave to appeal (see e.g. People v Singh, 40 AD3d 1015; People v Sain, 261 AD2d 488; People v McKane, 222 AD2d 458).

RIVERA, J.P., DILLON, MILLER, BALKIN and LEVENTHAL, JJ., concur.

20090224

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