Lisa H. Blitman, New York, N.Y., for appellant, and appellant pro se.
David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz, Robert Middlemiss, Seth B. Altman, and Andrew R. Kass of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered May 9, 2012, convicting
him of burglary in the third degree, petit larceny, and criminal possession of stolen property in the fifth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that he was improperly sentenced as a second felony offender is without merit. The People sustained their burden of proving, beyond a reasonable doubt, that the defendant previously was convicted of a felony upon which his adjudication as a second felony offender was based (see CPL 400.21[7] ; People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Glover, 69 A.D.3d 877, 878, 894 N.Y.S.2d 469 ; People v. Williams, 38 A.D.3d 576, 577, 833 N.Y.S.2d 516 ; People v. Myron, 28 A.D.3d 681, 684, 814 N.Y.S.2d 198 ). The defendant's conclusory allegations made at the sentencing proceeding, and his legal arguments made in support of his pro se motion asserting that his prior 2011 felony conviction was unconstitutionally obtained, were insufficient to
overcome the presumptions of the validity and regularity of the prior felony conviction (see People v. Myron, 28 A.D.3d at 684, 814 N.Y.S.2d 198 ; People v. Allen, 4 A.D.3d 479, 480, 771 N.Y.S.2d 685 ).
Furthermore, the defendant did not receive ineffective assistance of counsel based upon counsel's failure to join in his pro se motion challenging the constitutionality of the prior felony conviction. Counsel cannot be held ineffective for failing to make a motion or argument that has little or no chance of success (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 ; People v. Watts, 91 A.D.3d 678, 679, 935 N.Y.S.2d 893 ; People v. Serrano, 81 A.D.3d 753, 754, 916 N.Y.S.2d 509 ; People v. Sanabria, 52 A.D.3d 743, 744–745, 861 N.Y.S.2d 359 ).
By pleading guilty, the defendant forfeited his right to appellate review of his contention that he should be released from custody because the People failed to comply with CPL 180.80 (see People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 ; People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 ; People v. Thomas, 53 N.Y.2d 338, 342–345, 441 N.Y.S.2d 650, 424 N.E.2d 537 ; People v. Fagan, 53 A.D.3d 983, 984, 862 N.Y.S.2d 629 ; People v. Henderson, 269 A.D.2d 404, 702 N.Y.S.2d 878 ).
DILLON, J.P., DICKERSON, ROMAN and SGROI, JJ., concur.