People v. Moore

Judgment of the Supreme Court, New York County (Edwin Torres, J.), rendered on September 26, 1985, convicting defendant, following a plea of guilty, of criminal possession of stolen property in the second degree and sentencing him, as a predicate felon, to an indeterminate prison term of lti to 3 years, is affirmed.

In seeking reduction of his sentence, defendant asserts that he was improperly found to be a predicate felon. It is his contention that the allocution held in connection with his *376prior plea proceeding did not elicit all of the elements of the crime to which he pleaded (criminal possession of stolen property in the second degree) and, therefore, may not now be used to enhance his punishment in the present matter. Although defendant cites People v Serrano (15 NY2d 304) as authority for his claim, that case is clearly distinguishable from the one involved herein. In Serrano, the Court of Appeals held that a guilty plea may not stand where, in the course of the plea colloquy, the defendant makes statements which cast doubt upon his guilt of the crime to which he is pleading. The record of the allocution at issue in the instant case, however, does not present such a situation. At most, the inquiry into the factual basis for defendant’s guilt could have been more detailed, since the trial court did not explicitly ascertain whether he possessed the credit cards in question with the owner’s permission or knew that they were stolen. Yet, unlike what occurred in Serrano, defendant’s admissions in no way contradicted the prosecution’s version of events or cast doubt upon his guilt of criminal possession of stolen property in the second degree.

The law is well established that a conviction obtained in violation of one’s constitutional rights may not be used to increase punishment for another crime and that an alleged second or third felony offender may challenge the validity of the predicate conviction. (People v Harris, 61 NY2d 9.) However, a predicate conviction arising out of a guilty plea will not be deemed defective simply because the Trial Judge did not specifically enumerate all of the rights to which the defendant was entitled and which he might be relinquishing as a result of the guilty plea. (People v Harris, supra.) In that regard, there is no requirement for a "uniform mandatory catechism of pleading defendants” (People v Nixon, 21 NY2d 338, 353, cert denied sub nom. Robinson v New York, 393 US 1067; see also, People v Harris, supra).

Similarly, a guilty plea is not rendered invalid where all of the elements of the crime are not described with particularity at the time of the allocution. (People v McGowen, 42 NY2d 905; People v Francis, 38 NY2d 150.) As the Court of Appeals stated in People v McGowen (supra, at 906): "The record shows that he [defendant] admitted committing the acts alleged and his intent is 'readily inferrable’ from his statements regarding the circumstances of the crime. Thus the court was not required to make further inquiry before accepting the plea”. The fact that defendant here did not, in the predicate case, possess the credit cards with the owner’s permission is also *377readily inferred from his admissions at the time of the plea proceeding.

In any event, the issue is not, as stated, a constitutional question and is thus not reviewable by us. In a proceeding to determine whether a defendant is a predicate felon, the People have the burden of proving the existence of the previous felony conviction. (CPL 400.21 [7] [a]; People v Anderson, 100 AD2d 937.) Here, defendant admitted that he was the person named in the predicate felony information and that he received the stated sentence. Thus, the prior conviction was established. Of course, the prior conviction will not count as a predicate felony if it was unconstitutionally obtained. (CPL 400.21 [7] [b]; Burgett v Texas, 389 US 109, 115.) Although defendant’s counsel did, at sentence, state that the predicate felony plea was "unconstitutionally taken”, he raised only the inadequacy of the factual allocution with respect to the element of knowledge. Specifically, defendant argued that he did not admit to a knowing possession of stolen credit cards. In that regard, defendant has failed to raise a valid constitutional claim. (See, People v Perkins, 89 AD2d 956.) Merely invoking the talismanic words, "unconstitutionally taken”, will not do. Defendant has never claimed that the guilty plea with respect to the predicate felony was not a knowing or voluntary one. In fact, as the transcript of that proceeding reflects, he was advised of all his constitutional rights. Nor has defendant ever claimed a denial of his right to the effective assistance of counsel in that proceeding. In short, he makes no more than a claim of a factually inadequate plea allocution. Concur—Sandler, J. P., Sullivan and Milonas, JJ.