Opinion
74, 74A
January 30, 2003.
Judgment, Supreme Court, New York County (Micki Scherer, J.), rendered May 3, 2000, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 10 years, and order, same court and Justice, entered on or about February 21, 2002, which denied defendant's motions pursuant to CPL 440.10 and 440.20 to vacate the judgment and set aside the sentence, unanimously affirmed.
Donna Krone, for Respondent.
Jan Hoth-Uzzo, for Defendant-Appellant.
Before: Tom, J.P., Mazzarelli, Sullivan, Williams, Gonzalez, JJ.
Defendant was properly sentenced as a second violent felony offender, and his CPL 440.20 motion to set aside the sentence was properly denied. A review of defendant's Virginia indictment clearly establishes that his conviction in that state was for the equivalent of a New York violent felony (see People v. Gonzalez, 61 N.Y.2d 586, 590-591). Defendant complains that the People did not produce the indictment at his sentencing, and produced it for the first time in response to his motion to set aside sentence. However, at sentencing, the People had no reason to produce the indictment because defendant declined to challenge his second violent felony offender status (cf. People v. Gray, 86 N.Y.2d 10). Thus, defendant, who instead raised this issue by way of a motion, is responsible for the procedural posture of the case.
The court properly denied a pro se post-conviction application by defendant that the court treated as a motion to vacate judgment alleging ineffective assistance of counsel. The record established that defendant received meaningful representation, and his papers did not raise a factual issue warranting a hearing (see People v. Satterfield, 66 N.Y.2d 796, 799-800).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.