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 *933Court, Erie County, Flynn, J. — burglary, third degree.) Present —Callahan, J. P., Denman, Boomer, Balio and Davis, JJ.