People v. Williams

• Decision Date: 26 October 1987
• Citation: 520 N.Y.S.2d 424,133 A.D.2d 871
• Parties: The PEOPLE, etc., Respondent, v. James WILLIAMS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 424

520 N.Y.S.2d 424

133 A.D.2d 871

The PEOPLE, etc., Respondent, v.James WILLIAMS, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 26, 1987.

Stuart Birbach, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Janet M. Berk, of counsel), for respondent.

Before THOMPSON, J.P., and NIEHOFF, EIBER, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County(Owens, J.), rendered March 4, 1983, convicting him of attempted burglary in the first degree, upon his plea of guilty, and sentencing him, as a second felony offender, to an indeterminate term of imprisonment of four to eight years.

ORDERED that the judgment is affirmed.

The defendant challenges his 1974 conviction which served as a predicate for his adjudication as a second felony offender, claiming that he was entitled to an adjudication of his youthful offender status.The defense counsel affirmatively asserted at sentencing on the instant conviction that neither the defendant nor his counsel requested youthful offender treatment upon his sentencing in the 1974 case.The granting of youthful offender treatment is discretionary (see, People v. Williams, 124 A.D.2d 615, 507 N.Y.S.2d 876, lv. denied69 N.Y.2d 751, 512 N.Y.S.2d 1056, 505 N.E.2d 254;People v. Selg, 110 A.D.2d 918, 488 N.Y.S.2d 462).Thus, by virtue of his failure to assert such a claim at the time of sentencing on the 1974 conviction, the issue was waived (see, e.g., People v. McGowen, 42 N.Y.2d 905, 397 N.Y.S.2d 993, 366 N.E.2d 1347, rearg. denied 42 N.Y.2d 1015, 398 N.Y.S.2d 1033, 368 N.E.2d 289;People v. Di Marcantonio, 117 A.D.2d 612, 613, 498 N.Y.S.2d 160, lv. denied67 N.Y.2d 882, 501 N.Y.S.2d 1033, 492 N.E.2d 1240;People v. Busuttil, 115 A.D.2d 655, 496 N.Y.S.2d 493).In any event, the defendant should have sought review of the issue by means of a direct appeal (see, People v. Ferguson, 119 A.D.2d 338, 343-344, 507 N.Y.S.2d 622, lv. denied69 N.Y.2d 711, 512 N.Y.S.2d 1037, 504 N.E.2d 405).

The defendant also challenges, for the first time on appeal, the constitutionality of his 1974 conviction, and also of his 1976 conviction which was cited in the People's predicate felony statement.Having failed to demonstrate good cause for failing to controvert the constitutionality of the 1974 conviction upon his sentencing in 1976, the defendant has waived any allegation of the unconstitutionality thereof (see, CPL 400.21;People v. Oliver, 63 N.Y.2d 973, 483 N.Y.S.2d 992, 473 N.E.2d 242;People v. Mumit, 106 A.D.2d 411, 412, 482 N.Y.S.2d 333).Furthermore, because the defendant did not seek review of his adjudication as a second felony offender in 1976 by direct appeal or appropriate postjudgment motion, he must be deemed to have 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 facto laws contained in the U.S. Constitution, article I, § 10 has also not been preserved for appellate review as the issue was not raised before the...