People v. Downs

Appellate Division of the Supreme Court of New York

People v. Downs

49 A.D.2d 964, 374 N.Y.S.2d 59, 1975 N.Y. App. Div. LEXIS 11268

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

DecidedOctober 23, 1975

StatusPublished

Cited by2 cases

This text of 49 A.D.2d 964 (People v. Downs) 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. Downs, 49 A.D.2d 964, 374 N.Y.S.2d 59, 1975 N.Y. App. Div. LEXIS 11268 (N.Y. Ct. App. 1975).

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Opinion

Appeal from a judgment of the County Court of St. Lawrence County, rendered January 13, 1975, convicting defendant, upon his plea of guilty, of the crime of attempted burglary in the third degree and sentencing defendant to a sentence of imprisonment with a minimum term of one and one-half years and a maximum term of three years. The prior felony for which defendant was convicted, and which serves as the predicate felony for his second felony offender classification, was committed in the State of Florida. Under section 70.06 of the Penal Law, a sentence in such a case is made to depend upon the authorized sentence in the foreign jurisdiction, and we have held such portion of the statute to be unconstitutional in People v Morton (48 AD2d 58) and People v Parker (49 AD2d 657, but see L 1975, ch 784, § 1). Respondent’s contention that Morton is inapplicable where the crime for which the defendant was convicted in the foreign jurisdiction is defined as a felony under the law of New York was rejected in Parker. Therefore, the judgment must be reversed and the [965]*965matter remitted for resentencing of the defendant as a first-felony offender. Defendant also contends that his oral admissions should have been suppressed, alleging that the police continued to question him after he indicated a desire to have an attorney present. The police officer, however, testified that the defendant was fully advised of his constitutional rights and indicated that he understood those rights and would answer the officer’s questions. The officer further testified that he specifically inquired as to whether defendant wanted an attorney and that the defendant replied that he did not want an attorney at the time of questioning, though he might want one at a later time. Issues of credibility were thus raised and resolved by the trial court in its finding that defendant’s admissions were not obtained in violation of his rights. Being fully supported by the record, the factual determination by the trial court must be sustained. Judgment reversed, on the law, to the extent of vacating the sentence imposed on January 13, 1975, and matter remitted to the County Court of St. Lawrence County for resentencing defendant as a first-felony offender. Greenblott, J. P., Sweeney, Kane, Larkin and Reynolds, JJ., concur.

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Appeal from a judgment of the County Court of St. Lawrence County, rendered January 13, 1975, convicting defendant, upon his plea of guilty, of the crime of attempted burglary in the third degree and sentencing defendant to a sentence of imprisonment with a minimum term of one and one-half years and a maximum term of three years. The prior felony for which defendant was convicted, and which serves as the predicate felony for his second felony offender classification, was committed in the State of Florida. Under section 70.06 of the Penal Law, a sentence in such a case is made to depend upon the authorized sentence in the foreign jurisdiction, and we have held such portion of the statute to be unconstitutional in People v Morton (48 AD2d 58) and People v Parker (49 AD2d 657, but see L 1975, ch 784, § 1). Respondent’s contention that Morton is inapplicable where the crime for which the defendant was convicted in the foreign jurisdiction is defined as a felony under the law of New York was rejected in Parker. Therefore, the judgment must be reversed and the [965]*965matter remitted for resentencing of the defendant as a first-felony offender. Defendant also contends that his oral admissions should have been suppressed, alleging that the police continued to question him after he indicated a desire to have an attorney present. The police officer, however, testified that the defendant was fully advised of his constitutional rights and indicated that he understood those rights and would answer the officer’s questions. The officer further testified that he specifically inquired as to whether defendant wanted an attorney and that the defendant replied that he did not want an attorney at the time of questioning, though he might want one at a later time. Issues of credibility were thus raised and resolved by the trial court in its finding that defendant’s admissions were not obtained in violation of his rights. Being fully supported by the record, the factual determination by the trial court must be sustained. Judgment reversed, on the law, to the extent of vacating the sentence imposed on January 13, 1975, and matter remitted to the County Court of St. Lawrence County for resentencing defendant as a first-felony offender. Greenblott, J. P., Sweeney, Kane, Larkin and Reynolds, JJ., concur.

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Bluebook (online)

49 A.D.2d 964, 374 N.Y.S.2d 59, 1975 N.Y. App. Div. LEXIS 11268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-downs-nyappdiv-1975.

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