People v. Andrus

Appellate Division of the Supreme Court of New York

People v. Andrus

81 A.D.2d 676, 437 N.Y.S.2d 800, 1981 N.Y. App. Div. LEXIS 11219

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

DecidedApril 2, 1981

StatusPublished

Cited by4 cases

This text of 81 A.D.2d 676 (People v. Andrus) 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. Andrus, 81 A.D.2d 676, 437 N.Y.S.2d 800, 1981 N.Y. App. Div. LEXIS 11219 (N.Y. Ct. App. 1981).

Pincite

Opinion

— Appeal from a judgment of the County Court of St. Lawrence County, rendered May 20, 1980, convicting defendant upon his plea of guilty of the crime of sexual abuse in the first degree. Defendant was indicted on two separate indictments; the first charging him with sodomy in the first degree in violation of section 130.50 of the Penal Law, a class B felony, and sodomy in the third degree in violation of section 130.40 of the Penal Law, a class E felony, and the second charging him again with sodomy in the first degree and sexual abuse in the third degree in violation of section 130.55 of the Penal Law, a class B misdemeanor. A hearing on defendant’s motions to suppress evidence was held and these were denied. The motions included challenges to the propriety of the identification of defendant, the voluntariness of statements made by him and alleged denial of his right to counsel. Thereafter, as a result of plea negotiations, defendant entered a plea of guilty under each indictment to two counts of sexual abuse in the first degree, in violation of section 130.65 of the Penal Law, a class D felony. As part of the plea, the People recommended to the court that any sentence imposed run concurrently and the court acquiesced in such condition. The recommendation of the plea by the People was also conditioned on defendant’s waiver of his right to appeal from proceedings regarding the indictments. The court accepted the plea and defendant was sentenced to two indeterminate terms not to exceed a maximum of six years with a minimum of two years. The terms were to run concurrently. On appeal, defendant challenges the adequacy of the waiver of his right to [677]*677appeal and seeks review of the denial of his motions to suppress. His challenge lacks merit. The record clearly supports the conclusion that defendant entered his pleas of guilty and waived his right to appeal the denial of the motions to suppress voluntarily, with full knowledge of the consequences and on advice of counsel. An affirmance is, therefore, required (People v Francis, 38 NY2d 150; People v Williams, 36 NY2d 829, cert den 423 US 873; People v Gray, 75 AD2d 826; People v Juliano, 74 AD2d 881). We note that the trial court instructed defendant that even though he waived his right to appeal as part of the plea bargain, it was still possible for him to attack the plea bargain and the sentence by an appeal filed within 30 days. Judgment affirmed. Mahoney, P.J., Main, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.

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— Appeal from a judgment of the County Court of St. Lawrence County, rendered May 20, 1980, convicting defendant upon his plea of guilty of the crime of sexual abuse in the first degree. Defendant was indicted on two separate indictments; the first charging him with sodomy in the first degree in violation of section 130.50 of the Penal Law, a class B felony, and sodomy in the third degree in violation of section 130.40 of the Penal Law, a class E felony, and the second charging him again with sodomy in the first degree and sexual abuse in the third degree in violation of section 130.55 of the Penal Law, a class B misdemeanor. A hearing on defendant’s motions to suppress evidence was held and these were denied. The motions included challenges to the propriety of the identification of defendant, the voluntariness of statements made by him and alleged denial of his right to counsel. Thereafter, as a result of plea negotiations, defendant entered a plea of guilty under each indictment to two counts of sexual abuse in the first degree, in violation of section 130.65 of the Penal Law, a class D felony. As part of the plea, the People recommended to the court that any sentence imposed run concurrently and the court acquiesced in such condition. The recommendation of the plea by the People was also conditioned on defendant’s waiver of his right to appeal from proceedings regarding the indictments. The court accepted the plea and defendant was sentenced to two indeterminate terms not to exceed a maximum of six years with a minimum of two years. The terms were to run concurrently. On appeal, defendant challenges the adequacy of the waiver of his right to [677]*677appeal and seeks review of the denial of his motions to suppress. His challenge lacks merit. The record clearly supports the conclusion that defendant entered his pleas of guilty and waived his right to appeal the denial of the motions to suppress voluntarily, with full knowledge of the consequences and on advice of counsel. An affirmance is, therefore, required (People v Francis, 38 NY2d 150; People v Williams, 36 NY2d 829, cert den 423 US 873; People v Gray, 75 AD2d 826; People v Juliano, 74 AD2d 881). We note that the trial court instructed defendant that even though he waived his right to appeal as part of the plea bargain, it was still possible for him to attack the plea bargain and the sentence by an appeal filed within 30 days. Judgment affirmed. Mahoney, P.J., Main, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.

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Bluebook (online)

81 A.D.2d 676, 437 N.Y.S.2d 800, 1981 N.Y. App. Div. LEXIS 11219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-andrus-nyappdiv-1981.

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