The People of the State of New York, Respondent, v. Earl Barrino, Appellant

The People of the State of New York, Respondent, v Earl Barrino, Appellant. [608 NYS2d 830] [MAJORITY] Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered June 2, 1992, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to two terms of 4 Vi to 9 years and 3 to 6 years, respectively, the sentences to run concurrently, unanimously affirmed. The sentencing court properly rejected defendant’s constitutional challenge to a prior felony conviction, even if the court may have relied too heavily on a purported affirmance of that conviction, the grounds of which were not specified (compare, People v Nalo, 91 AD2d 957, with People v Di Giacomo, 96 AD2d 1127). A defendant is required to "allege and prove the facts underlying the claim that the conviction was unconstitutionally obtained (CPL 400.21, subd 7, par [b])” (People v Harris, 61 NY2d 9, 15). Defendant failed to establish that he received ineffective assistance of counsel at the time of his prior guilty plea, and he never requested time to prepare a proper challenge. Concur — Murphy, P. J., Rosenberger, Wallach, Asch and Williams, JJ.