People v. Dove

Appellate Division of the Supreme Court of New York

People v. Dove

236 A.D.2d 644, 654 N.Y.S.2d 40, 1997 N.Y. App. Div. LEXIS 1126

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

DecidedFebruary 6, 1997

StatusPublished

Cited by2 cases

This text of 236 A.D.2d 644 (People v. Dove) 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. Dove, 236 A.D.2d 644, 654 N.Y.S.2d 40, 1997 N.Y. App. Div. LEXIS 1126 (N.Y. Ct. App. 1997).

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Opinion

Mercure, J.

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered October 27, 1993, convicting defendant upon his plea of guilty of the crimes of assault in the second degree, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the third degree.

In satisfaction of three indictments containing four counts, defendant pleaded guilty to assault in the second degree, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the third degree. As part of the plea agreement, defendant was to be sentenced as a second felony offender to concurrent prison terms of 21h to 5 years on the assault charge and 41/2 to 9 years on the drug charge. It was also agreed that the weapons charge would be dismissed if defendant appeared on the scheduled sentencing date. Defendant, however, failed to appear at sentencing. County Court then imposed separate prison terms of 21h to 5 years on the assault and weapons charges, to be served consecutively, and 10 to 20 years on the drug charge, to be served concurrently with the other two sentences.

On appeal, defendant contends that his guilty plea was not properly entered. However, because defendant never moved to withdraw his plea or vacate the judgment of conviction, he cannot now challenge the sufficiency of his plea (see, People v Villafane, 216 AD2d 605, l;v denied 88 NY2d 996). In any event, the transcript of the plea allocution reveals that defendant knowingly and voluntarily entered his plea following a sufficient inquiry by County Court, during which time defendant admitted his guilt to the requisite elements of the crimes charged (see, People v Sloan, 228 AD2d 975, lv denied 88 NY2d 994).

We also reject defendant’s contention that the terms of imprisonment were harsh and excessive. Defendant has an extensive criminal record. In addition, he was specifically warned at the plea proceeding that if he failed to appear at sentencing, County Court would no longer be under any obligation to honor the agreed-upon prison sentences. In fact, the court told defendant that he faced the possibility of the harshest prison terms available and that each could be imposed consecutively. As it was, the prison terms imposed by the court [645]*645were not the harshest possible and only two of the terms were made consecutive. Under these circumstances, we decline to disturb the sentences imposed by the court (see, People v Graham, 222 AD2d 918, lv denied 87 NY2d 973).

Cardona, P. J., White, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed.

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Mercure, J.

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered October 27, 1993, convicting defendant upon his plea of guilty of the crimes of assault in the second degree, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the third degree.

In satisfaction of three indictments containing four counts, defendant pleaded guilty to assault in the second degree, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the third degree. As part of the plea agreement, defendant was to be sentenced as a second felony offender to concurrent prison terms of 21h to 5 years on the assault charge and 41/2 to 9 years on the drug charge. It was also agreed that the weapons charge would be dismissed if defendant appeared on the scheduled sentencing date. Defendant, however, failed to appear at sentencing. County Court then imposed separate prison terms of 21h to 5 years on the assault and weapons charges, to be served consecutively, and 10 to 20 years on the drug charge, to be served concurrently with the other two sentences.

On appeal, defendant contends that his guilty plea was not properly entered. However, because defendant never moved to withdraw his plea or vacate the judgment of conviction, he cannot now challenge the sufficiency of his plea (see, People v Villafane, 216 AD2d 605, l;v denied 88 NY2d 996). In any event, the transcript of the plea allocution reveals that defendant knowingly and voluntarily entered his plea following a sufficient inquiry by County Court, during which time defendant admitted his guilt to the requisite elements of the crimes charged (see, People v Sloan, 228 AD2d 975, lv denied 88 NY2d 994).

We also reject defendant’s contention that the terms of imprisonment were harsh and excessive. Defendant has an extensive criminal record. In addition, he was specifically warned at the plea proceeding that if he failed to appear at sentencing, County Court would no longer be under any obligation to honor the agreed-upon prison sentences. In fact, the court told defendant that he faced the possibility of the harshest prison terms available and that each could be imposed consecutively. As it was, the prison terms imposed by the court [645]*645were not the harshest possible and only two of the terms were made consecutive. Under these circumstances, we decline to disturb the sentences imposed by the court (see, People v Graham, 222 AD2d 918, lv denied 87 NY2d 973).

Cardona, P. J., White, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed.

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Bluebook (online)

236 A.D.2d 644, 654 N.Y.S.2d 40, 1997 N.Y. App. Div. LEXIS 1126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dove-nyappdiv-1997.

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