People v. Frascone

Appellate Division of the Supreme Court of New York

People v. Frascone

176 A.D.2d 128, 574 N.Y.S.2d 15, 1991 N.Y. App. Div. LEXIS 11534

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

DecidedSeptember 12, 1991

StatusPublished

Cited by1 cases

This text of 176 A.D.2d 128 (People v. Frascone) 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. Frascone, 176 A.D.2d 128, 574 N.Y.S.2d 15, 1991 N.Y. App. Div. LEXIS 11534 (N.Y. Ct. App. 1991).

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Opinion

—Judgment, Supreme Court, Bronx County (Bonnie Wittner, J.), rendered April 4, 1989, convicting defendant of robbery in the first degree and attempted robbery in the first degree, and sentencing him to concurrent terms of imprisonment of 6 to 12 years and 4 to 8 years, respectively, unanimously affirmed.

At the plea allocution for the robbery and attempted robbery charges, defendant told the Court that he did not actually have a gun when he committed these crimes, but had merely simulated a gun with his hand. The trial court promised to sentence defendant to the minimum term of incarceration on the robbery conviction, to run concurrently with his attempted robbery conviction, in view of the mitigating circumstance that no gun was used or recovered.

[129]*129Defendant’s claim that the plea was legally insufficient is not preserved for appellate review, because he failed to make a post-allocution motion to withdraw the plea (People v Lopez, 71 NY2d 662, 667). In any event, there was no need for the trial court to inquire further into defendant’s statements, since the record minutes make clear that defendant’s decision to forego a possible affirmative defense was part of a knowing and voluntary plea bargain. (People v Mitchell, 78 AD2d 608.) Concur — Carro, J. P., Wallach, Kupferman and Smith, JJ.

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—Judgment, Supreme Court, Bronx County (Bonnie Wittner, J.), rendered April 4, 1989, convicting defendant of robbery in the first degree and attempted robbery in the first degree, and sentencing him to concurrent terms of imprisonment of 6 to 12 years and 4 to 8 years, respectively, unanimously affirmed.

At the plea allocution for the robbery and attempted robbery charges, defendant told the Court that he did not actually have a gun when he committed these crimes, but had merely simulated a gun with his hand. The trial court promised to sentence defendant to the minimum term of incarceration on the robbery conviction, to run concurrently with his attempted robbery conviction, in view of the mitigating circumstance that no gun was used or recovered.

[129]*129Defendant’s claim that the plea was legally insufficient is not preserved for appellate review, because he failed to make a post-allocution motion to withdraw the plea (People v Lopez, 71 NY2d 662, 667). In any event, there was no need for the trial court to inquire further into defendant’s statements, since the record minutes make clear that defendant’s decision to forego a possible affirmative defense was part of a knowing and voluntary plea bargain. (People v Mitchell, 78 AD2d 608.) Concur — Carro, J. P., Wallach, Kupferman and Smith, JJ.

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Bluebook (online)

176 A.D.2d 128, 574 N.Y.S.2d 15, 1991 N.Y. App. Div. LEXIS 11534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-frascone-nyappdiv-1991.

Opinion

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