People v. Belair

Appellate Division of the Supreme Court of New York

People v. Belair

226 A.D.2d 1105, 642 N.Y.S.2d 144, 1996 N.Y. App. Div. LEXIS 5588

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

DecidedApril 19, 1996

StatusPublished

Cited by2 cases

This text of 226 A.D.2d 1105 (People v. Belair) 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. Belair, 226 A.D.2d 1105, 642 N.Y.S.2d 144, 1996 N.Y. App. Div. LEXIS 5588 (N.Y. Ct. App. 1996).

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Opinion

—Judgment unanimously affirmed. Memorandum: Defendant contends that County Court failed to honor its sentencing promise and, therefore, erred in denying his motion to withdraw his plea. We disagree. The record does not support the contention that defendant was promised that his sentence would run concur[1106]*1106rently with a sentence of shock incarceration that he was already serving, nor does it support the contention that the court unconditionally promised that defendant would receive credit for time served. The court specified that defendant would receive such credit, subject to the approval of the Department of Corrections. Defendant stated that he understood the proposed disposition and that no other promises had been made to him (cf., People v Ramos, 63 NY2d 640; People v Christian, 158 AD2d 705).

The contention that trial counsel failed to advise defendant that he could not receive credit for time served cannot be reviewed because the record is silent on that issue; there must be "a factual record sufficient to permit appellate review” (People v Kinchen, 60 NY2d 772, 774). Therefore, defendant is relegated to a motion for postjudgment relief (see, CPL 440.10; People v Larrabee, 201 AD2d 924, lv denied 83 NY2d 855; see also, People v Ramos, supra, at 642-643). (Appeal from Judgment of Herkimer County Court, Kirk, J.—Burglary, 3rd Degree.) Present—Pine, J. P., Wesley, Balio, Davis and Boehm, JJ.

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—Judgment unanimously affirmed. Memorandum: Defendant contends that County Court failed to honor its sentencing promise and, therefore, erred in denying his motion to withdraw his plea. We disagree. The record does not support the contention that defendant was promised that his sentence would run concur[1106]*1106rently with a sentence of shock incarceration that he was already serving, nor does it support the contention that the court unconditionally promised that defendant would receive credit for time served. The court specified that defendant would receive such credit, subject to the approval of the Department of Corrections. Defendant stated that he understood the proposed disposition and that no other promises had been made to him (cf., People v Ramos, 63 NY2d 640; People v Christian, 158 AD2d 705).

The contention that trial counsel failed to advise defendant that he could not receive credit for time served cannot be reviewed because the record is silent on that issue; there must be "a factual record sufficient to permit appellate review” (People v Kinchen, 60 NY2d 772, 774). Therefore, defendant is relegated to a motion for postjudgment relief (see, CPL 440.10; People v Larrabee, 201 AD2d 924, lv denied 83 NY2d 855; see also, People v Ramos, supra, at 642-643). (Appeal from Judgment of Herkimer County Court, Kirk, J.—Burglary, 3rd Degree.) Present—Pine, J. P., Wesley, Balio, Davis and Boehm, JJ.

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Bluebook (online)

226 A.D.2d 1105, 642 N.Y.S.2d 144, 1996 N.Y. App. Div. LEXIS 5588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-belair-nyappdiv-1996.

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