People v. Kubasiak

Judgment unanimously affirmed. Memorandum: The court properly sentenced defendant as a second felony offender without conducting an evidentiary hearing because defendant failed to allege facts in support of his statement that his predicate felony conviction was unconstitutionally obtained (see, People v Harris, 61 NY2d 9 , 15; see also, CPL 400.21 [7] [b]; People v Gipson, 152 AD2d 941 ). Moreover, the court properly questioned defendant regarding his claim and concluded that he had failed to sustain his burden of proof on the issue (see, People v Harris, supra, at 15, 16 ; People v Stewart, 96 AD2d 622 , 623). Defendant’s contention that the trial court abused its discretion in its Sandoval (see, People v Sandoval, 34 NY2d 371 ) ruling and thereby deprived him of a fair trial lacks merit (see, People v Pavao, 59 NY2d 282 , 292; People v Bennette, 56 NY2d 142 ; People v Shields, 46 NY2d 764 ). (Appeal from judgment of Supreme