People v. Robles , 592 N.Y.S.2d 593 ( 1992 )

Judgment, Supreme Court, Bronx County (Joseph A. Cerbone, J.), rendered December 17, 1987, convicting defendant, after a jury trial, of robbery in the second degree and attempted assault in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 10 years to life and IV% to 3 years, respectively, unanimously affirmed.

Defendant’s contention that the trial court refused to consider his challenge to the constitutionality of his 1983 prior felony conviction in determining whether he should be adjudicated a persistent violent felony offender is unpreserved for appellate review as a matter of law. In any event, were we to review the issue in the interest of justice, we would find it to be without merit, the trial court having adjourned the matter for a hearing at which it reviewed the 1983 plea and sentence minutes and determined that the plea had not been unconstitutionally obtained. Defendant’s contention that the 1983 conviction was unconstitutionally obtained because the sentencing court refused to entertain his motion to withdraw his guilty plea is both unpreserved, since defendant did not allege that his guilty plea was not knowingly or voluntarily entered or that he was denied effective assistance of counsel (People v Moore, 130 AD2d 375, 377, affd 71 NY2d 1002), and unreviewable, since defendant did not include his 1983 motion to withdraw the plea in the record (see, People v Olivo, 52 NY2d 309, 320). Were we to reach it, we would nevertheless find it to be without merit inasmuch as the minutes reveal that the court read the motion papers and correctly found them to be deficiente Concur — Murphy, P. J., Carro, Rosenberger, Asch and Kassal, JJ.