Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 1, #2©

Issue: Constitutional challenge to predicate felony conviction

A defendant convicted of a felony in a New York State court who has a prior felony conviction within 10 years is to be sentenced as a second felony offender. Penal Law article 70. However, a constitutional challenge may be made to the validity of that prior conviction. CPL 400.15(7)(b).

Among the constitutional issues that can be raised to the prior conviction are ineffective assistance of counsel or that the guilty plea was involuntarily made less obvious is as a constitutional defect, but potentially more fruitful, is to challenge a prior "waiver of indictment" as being constitutionally defective.

In New York State, a defendant has a constitutional right to be charged on a felony by indictment. US Constitution, amend V; NY State Constitution, art 1 sec 6. Frequently, a defendant who wishes to avail of a plea bargain will agree to waive indictment. CPL article 195. If the procedure is properly followed for a waiver of indictment, the resulting conviction is valid. Generally, see Muldoon and Feuerstein, Handling a Criminal Case in New York (West Group 1999-2000), secs. 3:23-3:27.

Where the waiver procedure is improperly followed, that can be raised by the defendant on direct appeal. See, e.g., People v Boston, 75 NY2d 585, 555 NYS2d 27 (1990). And, an improper waiver of indictment procedure is a constitutional challenge that can be raised as well in a predicate felony proceeding, according to one lower court opinion. See, People v Torres, 175 Misc 2d 903, 671 NYS2d 912 (Sup Ct 1998) (dictum); Handling a Criminal Case in New York, sec. 21:134.

QUOTATION: "Silence is one of the hardest arguments to refute." Josh Billings.

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