People v. Nadal

• Decision Date: 16 June 1997
• Citation: 659 N.Y.S.2d 54,240 A.D.2d 595
• Parties: The PEOPLE, etc., Respondent, v. Juan NADAL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 54

659 N.Y.S.2d 54

240 A.D.2d 595

The PEOPLE, etc., Respondent, v. Juan NADAL, Appellant.

Supreme Court, Appellate Division, Second Department.

June 16, 1997.

David C. Farman, New York City, for appellant.

Jeanine Pirro, District Attorney, White Plains (Michael J. Borrelli, Jr., and Maryanne Luciano, of counsel), for respondent.

Before MILLER, J.P., and THOMPSON, JOY and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Westchester County (Cowhey, J.), rendered March 28, 1995, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

In accordance with the plea agreement, the defendant was sentenced as a second felony offender based upon a 1990 conviction. At sentencing, the defendant claimed that he should not be sentenced as a second felony offender because he was denied youthful offender treatment on his 1990 conviction. On appeal, the defendant claims that he was denied effective assistance of counsel on his 1990 conviction because his counsel at that time did not further investigate whether he was eligible for youthful offender treatment.

The defendant's claim that he was denied effective assistance of counsel on his 1990 conviction was not raised before the trial court, and therefore, is not preserved for appellate review (see, People v. Early, 173 A.D.2d 884, 885, 569 N.Y.S.2d 756). Moreover, the defendant's underlying claims regarding his 1990 conviction involve matters which are dehors the record, and therefore are not properly before this court on appeal (see, People v. Grazzette, 211 A.D.2d 822, 621 N.Y.S.2d 917; People v. Dyson, 200 A.D.2d 756, 608 N.Y.S.2d 864).

Further, the defendant's claim that he was denied effective assistance of counsel on the instant conviction is without merit. Counsel's failure to challenge the constitutionality of his 1990 conviction did not deprive the defendant of meaningful representation, as the defendant knowingly, voluntarily, and intelligently waived his right to challenge the constitutionality of the 1990 conviction, as well as the sentence itself, as part of the plea agreement (see, People v. Seaberg, 74 N.Y.2d 1, 7, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Conti, 149 A.D.2d 607, 608, 540 N.Y.S.2d 685). We find that counsel provided received meaningful representation (see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).