People v Alvarado

People v Alvarado 2009 NY Slip Op 07945 [67 AD3d 430] November 5, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

The People of the State of New York, Respondent,
v
Hector Alvarado, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Frank Glaser of counsel), for respondent.

Judgment, Supreme Court, New York County (John Cataldo, J.), rendered July 15, 2007, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.

Although the court should have permitted defendant to introduce the original civilian complainant's hospital records demonstrating his alleged intoxication into evidence, the error was harmless under the standards for constitutional or nonconstitutional error (see People v Crimmins, 36 NY2d 230 [1975]). There was overwhelming evidence that defendant assaulted a police officer with intent to prevent him from performing a lawful duty (see Penal Law § 120.05 [3]). The question of the original complainant's intoxication was tangential, and introduction of the records at issue could not have affected the verdict.

Defendant waived his present challenge to the constitutionality of his 2001 predicate felony by failing to raise the same issue at the time of his adjudication as a persistent violent felony offender (see CPL 400.15 [7] [b]; People v Odom, 61 AD3d 896 [2009], lv denied 13 NY3d 747 [2009]). In any event defendant's prior conviction was not "obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States" (CPL 400.15 [7] [b]). Accordingly, we conclude that defendant received effective assistance of counsel under the state and federal standards (see People v Benevento, 91 NY2d [*2]708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]) in connection with his persistent violent felony offender adjudication. Concur—Mazzarelli, J.P., Andrias, Friedman, Nardelli and Moskowitz, JJ.