People v Moore

People v Moore 2008 NY Slip Op 01005 [48 AD3d 222] February 5, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 16, 2008

The People of the State of New York, Respondent,
v
Larry Moore, Also Known as Jason Miguel, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York City (Claudia S. Trupp of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Allen J. Vickey of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered April 5, 2007, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.

Defendant claims that the sentencing court should not have counted his 1997 conviction as a second violent felony conviction because it was allegedly obtained in violation of his constitutional right to effective counsel, in that counsel failed to seek youthful offender treatment. Since defendant is not challenging the substantive legality of his sentence, but asserting a procedural defect that can be waived (see People v Samms, 95 NY2d 52, 56-58 [2000]; People v Abruzzese, 30 AD3d 219, 220 [2006], lv denied 7 NY3d 784 [2006]), his valid waiver of his right to appeal forecloses that claim. Further, because he failed to challenge the constitutionality of the 1997 conviction when it was counted as a predicate conviction in 2004, or demonstrate good cause for such failure, he waived any future challenge to the 1997 conviction's constitutionality for sentence enhancement purposes (see People v Crawford, 204 AD2d 203 [1994], lv denied 84 NY2d 906 [1994]). We also reject defendant's claim on the merits. Concur—Tom, J.P., Saxe, Gonzalez, Buckley and Catterson, JJ.