People v. Wilson

LARRY M. HIMELEIN, J. Defendant has been convicted, under separate indictments, of various drug-related felonies and the People in both cases seek to have defendant sentenced as a predicate felon. The People allege that defendant was convicted in North Dakota of sexual imposition (ND Cent Code § 12.1-20-04) and failure to appear after release—bail jumping (ND Cent Code § 12.1-08-05) and these convictions would constitute felonies in New York for enhanced sentencing purposes (see, Penal Law § 70.06). Defendant contends that neither conviction would constitute a felony in New York. Defendant also raised a claim of ineffective counsel on the underlying convictions but withdrew the claim at his last court appearance. Since that time, however, defendant wrote to the court and asked that he be permitted to pursue the ineffective counsel claim. Because the letter was sent to the court without being copied to either prosecutor, the court returned the letter to defendant with instructions to copy both prosecutors. Defendant beyond a reasonable doubt (CPL 400.21 [7] [a]). However, if the prior conviction is established, defendant bears the burden of proving his claim that the conviction was unconstitutionally obtained (CPL 400.21 [7] [b]; People v Harris, 61 NY2d 9). Accordingly, the clerk is directed to schedule a hearing. Because any finding at the hearing becomes binding (CPL 400.21 [8]), both prosecutors and both defense counsels should be present. Further, Fern Adelstein, who represents defendant on a pending bail jumping charge, should also receive notice of the hearing.