People v. Bennett

Appellate Division of the Supreme Court of New York

People v. Bennett

223 A.D.2d 431, 637 N.Y.S.2d 7, 1996 N.Y. App. Div. LEXIS 336

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

DecidedJanuary 18, 1996

StatusPublished

Cited by3 cases

This text of 223 A.D.2d 431 (People v. Bennett) 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. Bennett, 223 A.D.2d 431, 637 N.Y.S.2d 7, 1996 N.Y. App. Div. LEXIS 336 (N.Y. Ct. App. 1996).

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Opinion

Judgment, Supreme Court, Bronx County (William Donnino, J.), rendered June 21, 1994, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree and attempted criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 1½ to 4½ years, unanimously affirmed.

The trial court properly determined, after due inquiry, that defendant’s display of a loaded handgun to "scare * * * off” others was a menacing action constituting the crime of criminal possession of a weapon in the second degree under Penal Law § 265.03. The record indicates that defendant entered a knowing, intelligent and voluntary guilty plea that included an express waiver of his right to appeal the conviction (see, People v Seaberg, 74 NY2d 1). Despite extended colloquy on the subject of intent, defendant at no time suggested that his display of the gun was in self-defense or otherwise justified. Thus, in light of the colloquy and defendant’s failure to move for withdrawal of the plea or vacatur of the conviction, his current claim that the plea court should have divined the possibility that defendant might have acted defensively is not preserved (see, People v Lopez, 71 NY2d 662). Concur—Rosenberger, J. P., Wallach, Rubin, Nardelli and Mazzarelli, JJ.

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Judgment, Supreme Court, Bronx County (William Donnino, J.), rendered June 21, 1994, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree and attempted criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 1½ to 4½ years, unanimously affirmed.

The trial court properly determined, after due inquiry, that defendant’s display of a loaded handgun to "scare * * * off” others was a menacing action constituting the crime of criminal possession of a weapon in the second degree under Penal Law § 265.03. The record indicates that defendant entered a knowing, intelligent and voluntary guilty plea that included an express waiver of his right to appeal the conviction (see, People v Seaberg, 74 NY2d 1). Despite extended colloquy on the subject of intent, defendant at no time suggested that his display of the gun was in self-defense or otherwise justified. Thus, in light of the colloquy and defendant’s failure to move for withdrawal of the plea or vacatur of the conviction, his current claim that the plea court should have divined the possibility that defendant might have acted defensively is not preserved (see, People v Lopez, 71 NY2d 662). Concur—Rosenberger, J. P., Wallach, Rubin, Nardelli and Mazzarelli, JJ.

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Bluebook (online)

223 A.D.2d 431, 637 N.Y.S.2d 7, 1996 N.Y. App. Div. LEXIS 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bennett-nyappdiv-1996.

Opinion

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