People v. Morcilio
| Decision Date | 31 January 1983 |
| Citation | 459 N.Y.S.2d 15,91 A.D.2d 1074 |
| Parties | The PEOPLE, etc., Respondent, v. Hector MORCILIO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
William E. Hellerstein, New York City (Miriam J. Hibel, New York City, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Julie R. Fischer, Barbara D. Underwood and Jane S. Meyers, Brooklyn, of counsel), for respondent.
Before DAMIANI, J.P., and LAZER, MANGANO and GIBBONS, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 18, 1981, convicting him of criminal possession of stolen property in the second degree, upon a plea of guilty, and sentencing him as a second felony offender to an indeterminate term of 1 1/2 to 3 years imprisonment.
Judgment affirmed.
Prior to defendant's sentencing on May 18, 1981, the People filed a predicate felony statement against defendant for the purpose of having him sentenced as a second felony offender (Penal Law, § 70.06; CPL 400.21). The predicate felony statement filed against defendant listed two prior class E felony convictions, namely (1) a 1973 conviction for attempted criminal possession of a weapon in the third degree, and (2) a 1974 conviction for criminal possession of stolen property in the second degree.
The court was also advised that defendant had been sentenced as a second felony offender upon his 1974 conviction, and that the 1973 conviction served as the predicate felony for that sentence. In response to the predicate felony statement filed by the People, defense counsel alleged that the defendant, who is deaf, did not understand his guilty pleas to the two prior felonies, or his prior adjudication as a second felony offender in 1974, due to inadequate sign language interpreters. Counsel thereupon requested a hearing on these allegations pursuant to CPL 400.21 (subd. 5).
The sentencing court conducted a hearing but limited it to only one issue, viz., whether defendant had been adjudicated a second felony offender in 1974. After receiving competent and sufficient proof on this issue, the court sentenced defendant, as a second felony offender, to an indeterminate term of 1 1/2 to 3 years imprisonment.
In our view, Criminal Term did not err in limiting the hearing and in sentencing defendant as a second felony offender.
Subdivision 8 of CPL 400.21 provides:
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People v. Williams
...waived that issue (see, CPL 400.21; People v. Loughlin, 66 N.Y.2d 633, 635-636, 495 N.Y.S.2d 357, 485 N.E.2d 1022; People v. Morcilio, 91 A.D.2d 1074, 459 N.Y.S.2d 15). Lastly, the defendant's claim that his adjudication as a second felony offender violates the prohibition against ex post f......
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People v. Brabham
...is "binding upon * * * defendant in any future proceeding in which the issue may arise" (CPL 400.21, subd. 8; People v. Morcilio, 91 A.D.2d 1074, 459 N.Y.S.2d 15 (2d Dept.1983)). Defendant seeks now to show good cause for his failure in 1975 to challenge the 1970 conviction by alleging that......
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Greco v. Duncan, 98-CV-6339 (CJS) (W.D.N.Y. 10/4/2002)
...from contesting his previous second felony offender adjudication, since he never attempted to have it set aside. See, People v. Morcilio, 91 A.D.2d 1074 (2d Dept. 1983) ("Since defendant never successfully attacked his 1974 sentence as a second felony offender, either by way of a direct app......
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People v. Conti
...deemed to have waived that issue (see, People v. Loughlin, 66 N.Y.2d 633, 635-636, 495 N.Y.S.2d 357, 485 N.E.2d 1022; People v. Morcilio, 91 A.D.2d 1074, 459 N.Y.S.2d 15). Upon a review of the record we find that the defendant failed to demonstrate good cause for his failure to controvert t......