People v. Lewis , 690 N.Y.S.2d 809 ( 1999 )

—Judgment unanimously affirmed. Memorandum: We reject the contention of defendant that County Court improperly adjudicated him a second felony offender. The People proved the existence of the predicate felony conviction (see, CPL 400.21 [7] [a]), thereby shifting the burden of proof to defendant to show that the prior conviction was unconstitutionally obtained (see, CPL 400.21 [7] [b]; People v Harris, 61 NY2d 9, 15; People v Harper, 210 AD2d 894; People v Cook, 117 AD2d 993, lv denied 67 NY2d 941). From our review of the hearing record, we conclude that defendant failed to establish that he was denied effective assistance of counsel on the prior conviction because of his attorneys failure to make motions (see generally, People v Baldi, 54 NY2d 137, 147). (Appeal from Judgment of Ontario County Court, Harvey, J. — Attempted. Criminal Possession Weapon, 3rd Degree.) Present — Pine, J. P., Hayes, Pigott, Jr., Hurlbutt and Callahan, JJ.