Opinion
April 23, 1984
Appeal by the People from two sentences of the Supreme Court, Queens County (Hentel, J.), both imposed December 3, 1982, sentencing defendant, as a first felony offender, to concurrent indeterminate terms of one to three years' incarceration, upon his conviction of two counts of criminal possession of a controlled substance in the third degree. ¶ Sentences vacated, defendant is adjudicated a second felony offender, and the matter is remitted to Criminal Term for resentencing in accordance herewith. ¶ The People satisfied their burden at the predicate felony hearing by establishing beyond a reasonable doubt the existence of defendant's previous felony conviction. It is not their burden in the first instance to establish the constitutionality of that conviction. Once the fact of the prior conviction was established, the burden then fell on defendant to allege and prove facts underlying the claim that the conviction was unconstitutionally obtained (CPL 400.21, subd 7, par [b]; People v Harris, 61 N.Y.2d 9). The only basis offered to support that claim was defendant's assertion that he was deprived of the effective assistance of counsel at the time of his prior felony conviction. However, no evidence was offered to support defendant's assertion and Criminal Term's finding was based on pure speculation (see People v Baldi, 54 N.Y.2d 137). Accordingly, defendant must be resentenced on the instant felony convictions as a second felony offender. Thompson, J.P., Weinstein, Brown and Eiber, JJ., concur.