People v. Fazar

Appellate Division of the Supreme Court of New York

People v. Fazar

288 A.D.2d 862, 732 N.Y.S.2d 190, 2001 N.Y. App. Div. LEXIS 10774

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

DecidedNovember 9, 2001

StatusPublished

This text of 288 A.D.2d 862 (People v. Fazar) 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. Fazar, 288 A.D.2d 862, 732 N.Y.S.2d 190, 2001 N.Y. App. Div. LEXIS 10774 (N.Y. Ct. App. 2001).

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Opinion

—Judgment [863]*863unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting him of two counts of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [2]) and one count of grand larceny in the fourth degree (Penal Law § 155.30 [1]) in connection with his possession of credit cards stolen from his father. Pursuant to the plea agreement, defendant would plead guilty to counts one and four of the superior court information (SCI); counts two and three would be dismissed; and defendant would serve an aggregate term of incarceration of Zxh to 7 years. After defendant pleaded guilty to count one, County Court began a colloquy with respect to count three. When defense counsel interrupted the court to explain that the plea agreement provided that defendant would plead guilty to counts one and four, the court then proceeded to obtain defendant’s plea of guilty to count four. At sentencing, however, the court imposed a sentence of incarceration of IV2 to 3 years on count three and directed that the sentence imposed on that count run consecutively with the sentence of 2 to 4 years imposed on count one, thus creating the aggregate term of 3V2 to 7 years. The sentence of IV2 to 3 years imposed on count four was to run concurrently with the sentences imposed on the other counts. As the People properly concede, the court erred in imposing sentence on count three of the SCI, and thus we modify the judgment by vacating the sentence imposed on that count. However, the People did not agree to the aggregate sentence of 2 to 4 years that results from the vacatur of that sentence. Thus, “the court should entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety” {People v Irwin, 166 AD2d 924, 925; see, People v Farrar, 52 NY2d 302, 307-308). In view of our decision, we do not address defendant’s remaining contentions. (Appeal from Judgment of Ontario County Court, Harvey, J. — Criminal Possession Stolen Property, 4th Degree.) Present — Green, J. P., Hayes, Wisner, Scudder and Kehoe, JJ.

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—Judgment [863]*863unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting him of two counts of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [2]) and one count of grand larceny in the fourth degree (Penal Law § 155.30 [1]) in connection with his possession of credit cards stolen from his father. Pursuant to the plea agreement, defendant would plead guilty to counts one and four of the superior court information (SCI); counts two and three would be dismissed; and defendant would serve an aggregate term of incarceration of Zxh to 7 years. After defendant pleaded guilty to count one, County Court began a colloquy with respect to count three. When defense counsel interrupted the court to explain that the plea agreement provided that defendant would plead guilty to counts one and four, the court then proceeded to obtain defendant’s plea of guilty to count four. At sentencing, however, the court imposed a sentence of incarceration of IV2 to 3 years on count three and directed that the sentence imposed on that count run consecutively with the sentence of 2 to 4 years imposed on count one, thus creating the aggregate term of 3V2 to 7 years. The sentence of IV2 to 3 years imposed on count four was to run concurrently with the sentences imposed on the other counts. As the People properly concede, the court erred in imposing sentence on count three of the SCI, and thus we modify the judgment by vacating the sentence imposed on that count. However, the People did not agree to the aggregate sentence of 2 to 4 years that results from the vacatur of that sentence. Thus, “the court should entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety” {People v Irwin, 166 AD2d 924, 925; see, People v Farrar, 52 NY2d 302, 307-308). In view of our decision, we do not address defendant’s remaining contentions. (Appeal from Judgment of Ontario County Court, Harvey, J. — Criminal Possession Stolen Property, 4th Degree.) Present — Green, J. P., Hayes, Wisner, Scudder and Kehoe, JJ.

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Bluebook (online)

288 A.D.2d 862, 732 N.Y.S.2d 190, 2001 N.Y. App. Div. LEXIS 10774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fazar-nyappdiv-2001.

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