People v. Cole

Appellate Division of the Supreme Court of New York

People v. Cole

57 A.D.2d 798, 394 N.Y.S.2d 694, 1977 N.Y. App. Div. LEXIS 11973

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

DecidedMay 19, 1977

StatusPublished

This text of 57 A.D.2d 798 (People v. Cole) 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. Cole, 57 A.D.2d 798, 394 N.Y.S.2d 694, 1977 N.Y. App. Div. LEXIS 11973 (N.Y. Ct. App. 1977).

Pincite

Opinion

Judgment, Supreme Court, Bronx County, convicting the defendant on November 19, 1975, on his plea of guilty of manslaughter in the first degree, and sentencing him to an indeterminate term of 11 Vi years to 23 years unanimously reversed, as a matter of discretion in the interest of justice and remanded for resentence only. The plea and sentence minutes both show that the court intended to sentence the defendant to a maximum of 23 years, to run concurrently with a previously imposed reformatory term. However, section 75.10 (subd 2, par [c], cl [ii]) of the Penal Law (subsequently repealed L. 1974, ch 652, § 7), mandates that the unexpired reformatory term run consecutively with the subsequent term, thus frustrating the court’s intention. Although it appears defendant is a predicate felon, the comment of the court on the scope of a predicate felony hearing was erroneous and misleading. Accordingly, defendant should be afforded a hearing, if requested, on sufficient grounds, to controvert his predicate felon status. Concur — Birns, J. P., Silverman, Evans and Capozzoli, JJ.

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Judgment, Supreme Court, Bronx County, convicting the defendant on November 19, 1975, on his plea of guilty of manslaughter in the first degree, and sentencing him to an indeterminate term of 11 Vi years to 23 years unanimously reversed, as a matter of discretion in the interest of justice and remanded for resentence only. The plea and sentence minutes both show that the court intended to sentence the defendant to a maximum of 23 years, to run concurrently with a previously imposed reformatory term. However, section 75.10 (subd 2, par [c], cl [ii]) of the Penal Law (subsequently repealed L. 1974, ch 652, § 7), mandates that the unexpired reformatory term run consecutively with the subsequent term, thus frustrating the court’s intention. Although it appears defendant is a predicate felon, the comment of the court on the scope of a predicate felony hearing was erroneous and misleading. Accordingly, defendant should be afforded a hearing, if requested, on sufficient grounds, to controvert his predicate felon status. Concur — Birns, J. P., Silverman, Evans and Capozzoli, JJ.

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Bluebook (online)

57 A.D.2d 798, 394 N.Y.S.2d 694, 1977 N.Y. App. Div. LEXIS 11973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cole-nyappdiv-1977.