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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WOODROW WHEELER, Defendant-Appellant.

The court properly sentenced defendant as a persistent violent felony offender. Defendant did not establish a factual basis for his constitutional challenge to a 1989 felony conviction. Defendant's assertion that he "believed" that he "would have" instructed his attorney to file a notice of appeal from that conviction is factually insufficient to support his claim that his attorney rendered ineffective assistance by disregarding a direct instruction to file such a notice ( see Roe v. Flores-Ortega, 528 U.S. 470).

We have considered and rejected defendant's remaining arguments, including those contained in his pro se supplemental brief.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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PEOPLE v. WHEELER
(May 6, 2004)