People v. Adikov

Appellate Division of the Supreme Court of New York

People v. Adikov

137 A.D.3d 672, 28 N.Y.S.3d 64

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 29, 2016

Docket629 5549/10 5158/11

StatusPublished

This text of 137 A.D.3d 672 (People v. Adikov) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Adikov, 137 A.D.3d 672, 28 N.Y.S.3d 64 (N.Y. Ct. App. 2016).

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Opinion

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered February 8, 2013, convicting defendant, upon his plea of guilty, of criminal possession of a forged instrument in the second degree, and sentencing him to a term of two to six years, unanimously affirmed.

The court properly denied defendant’s motion to withdraw his guilty plea. Based on an objective reading of the plea bargain (see People v Collier, 22 NY3d 429, 433-434 [2013]), we conclude that defendant’s plea was not induced by an unfulfilled promise. Defendant was clearly apprised that the promise was a sentence of 2 to 6 years, and not time served. While the court informed defendant that his sentence would “in effect” be time served because he had already served the two-year minimum, and because prompt parole for the purpose of deportation to defendant’s native country was very likely, this was expressed in terms of probability, not certainty. The court also made no firm promise about whether defendant would be in City or State custody before being paroled. In any event, to the extent the promise could be objectively understood to be a promise of a sentence that was nearly or approximately a sentence of time served, that promise was essentially fulfilled.

Concur—Friedman, J.P., Andrias, Saxe and Richter, JJ.

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Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered February 8, 2013, convicting defendant, upon his plea of guilty, of criminal possession of a forged instrument in the second degree, and sentencing him to a term of two to six years, unanimously affirmed.

The court properly denied defendant’s motion to withdraw his guilty plea. Based on an objective reading of the plea bargain (see People v Collier, 22 NY3d 429, 433-434 [2013]), we conclude that defendant’s plea was not induced by an unfulfilled promise. Defendant was clearly apprised that the promise was a sentence of 2 to 6 years, and not time served. While the court informed defendant that his sentence would “in effect” be time served because he had already served the two-year minimum, and because prompt parole for the purpose of deportation to defendant’s native country was very likely, this was expressed in terms of probability, not certainty. The court also made no firm promise about whether defendant would be in City or State custody before being paroled. In any event, to the extent the promise could be objectively understood to be a promise of a sentence that was nearly or approximately a sentence of time served, that promise was essentially fulfilled.

Concur—Friedman, J.P., Andrias, Saxe and Richter, JJ.

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Bluebook (online)

137 A.D.3d 672, 28 N.Y.S.3d 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-adikov-nyappdiv-2016.

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