People v. Berdecia

Appellate Division of the Supreme Court of New York

People v. Berdecia

223 A.D.2d 444, 637 N.Y.S.2d 48, 1996 N.Y. App. Div. LEXIS 491

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

DecidedJanuary 23, 1996

StatusPublished

Cited by8 cases

This text of 223 A.D.2d 444 (People v. Berdecia) 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. Berdecia, 223 A.D.2d 444, 637 N.Y.S.2d 48, 1996 N.Y. App. Div. LEXIS 491 (N.Y. Ct. App. 1996).

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Opinion

Judgment, Supreme Court, Bronx County (George Covington, J.), rendered November 1, 1993, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.

Defendant’s motion to suppress physical and identification evidence was properly denied without a hearing, his allegation that the observing officer relayed an inadequate and unreliable radio description of him being factually insufficient to support his claim that the police lacked probable cause to arrest him (see, People v Mendoza, 82 NY2d 415, 428-429). This deficiency in defendant’s suppression motion being apparent on its face, the suppression court’s failure to set forth the reasons for its determination requires no remedial action (see, People v Murray, 172 AD2d 437, appeal withdrawn 79 NY2d 942).

Defendant’s claim that the court’s surrender order was not a part of the plea agreement, and that he therefore should have been allowed to withdraw his plea before being sentenced to a term exceeding the one promised, is unpreserved for appellate review as a matter of law, since defendant never objected at sentencing nor moved to withdraw the plea or to vacate the judgment of conviction (see, People v Ramirez, 210 AD2d 56, lv denied 84 NY2d 1037). Were we to reach the issue, we would find that the surrender order was an express condition of the plea agreement, the court having stated that the order was based on an arrangement it had made with defendant’s counsel allowing defendant more bail time to get married.

[445]*445The sentence properly took into account defendant’s breach of the surrender condition of his plea agreement, and was otherwise a proper exercise of discretion (see, People v Dremeguila, 166 AD2d 196, lv denied 76 NY2d 1020). Concur—Ellerin, J. P., Kupferman, Ross, Williams and Tom, JJ.

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Judgment, Supreme Court, Bronx County (George Covington, J.), rendered November 1, 1993, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.

Defendant’s motion to suppress physical and identification evidence was properly denied without a hearing, his allegation that the observing officer relayed an inadequate and unreliable radio description of him being factually insufficient to support his claim that the police lacked probable cause to arrest him (see, People v Mendoza, 82 NY2d 415, 428-429). This deficiency in defendant’s suppression motion being apparent on its face, the suppression court’s failure to set forth the reasons for its determination requires no remedial action (see, People v Murray, 172 AD2d 437, appeal withdrawn 79 NY2d 942).

Defendant’s claim that the court’s surrender order was not a part of the plea agreement, and that he therefore should have been allowed to withdraw his plea before being sentenced to a term exceeding the one promised, is unpreserved for appellate review as a matter of law, since defendant never objected at sentencing nor moved to withdraw the plea or to vacate the judgment of conviction (see, People v Ramirez, 210 AD2d 56, lv denied 84 NY2d 1037). Were we to reach the issue, we would find that the surrender order was an express condition of the plea agreement, the court having stated that the order was based on an arrangement it had made with defendant’s counsel allowing defendant more bail time to get married.

[445]*445The sentence properly took into account defendant’s breach of the surrender condition of his plea agreement, and was otherwise a proper exercise of discretion (see, People v Dremeguila, 166 AD2d 196, lv denied 76 NY2d 1020). Concur—Ellerin, J. P., Kupferman, Ross, Williams and Tom, JJ.

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Bluebook (online)

223 A.D.2d 444, 637 N.Y.S.2d 48, 1996 N.Y. App. Div. LEXIS 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-berdecia-nyappdiv-1996.

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