People v Edwardo Diaz

People v Diaz 2004 NY Slip Op 09389 [13 AD3d 194] December 16, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

The People of the State of New York, Respondent,
v
Edwardo Diaz, Appellant.

—[*1]Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered May 23, 2003, convicting defendant, upon his plea of guilty, of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.

The court properly denied defendant's applications to withdraw his guilty plea and for reassignment of counsel (see People v Frederick, 45 NY2d 520 [1978]). Although defendant received a sufficient opportunity to present his contentions both in writing and by addressing the court, he did not specify a legal basis for any relief (see e.g. People v Gaskin, 2 AD3d 347 [2003], lv denied 2 NY3d 740 [2004]). The record establishes that defendant's plea was knowing, intelligent and voluntary and was entered with the effective assistance of counsel (see People v Ford, 86 NY2d 397, 404 [1995]).

Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant's mandatory sentence as a persistent violent felony offender was triggered solely by [*2]his prior convictions (see Almendarez-Torres v United States, 523 US 224 [1998]). Concur—Williams, J.P., Marlow, Gonzalez, Sweeny and Catterson, JJ.