People v. Gilchrist

Appellate Division of the Supreme Court of New York

People v. Gilchrist

251 A.D.2d 1030, 673 N.Y.S.2d 958, 1998 N.Y. App. Div. LEXIS 7073

Appellate Division of the Supreme Court of the State of New York·Decided June 10, 1998·Published·Cited by 2 cases

Opinion

—Judgment unanimously affirmed. Memorandum: County Court did not abuse its discretion in denying the motion of defendant to withdraw his guilty plea to criminal possession of a weapon in the third degree (Penal Law § 265.02 [1031]*1031[4]), a violent felony. The record does not support the contention of defendant that he entered the plea based on misinformation that the promised sentence of a four-year definite term of incarceration would be concurrent with a sentence he was serving on a prior conviction.

Defendant further contends that he was denied effective assistance of counsel because defense counsel took a position adverse to him and became a witness against him when defendant moved to withdraw his guilty plea and because defense counsel did not accurately inform him that, by pleading guilty to a violent felony, the sentence imposed would run consecutive to a sentence he was serving on a prior conviction. The record does not support either contention (cf., People v Burton, 251 AD2d 1020 [decided herewith]). To the extent that the contention that defense counsel misinformed defendant with respect to his sentence is based on matters outside the record, that contention can only be considered in a motion for postjudgment relief (see, CPL 440.10 [1] [h]; People v Hodge, 226 AD2d 1124, lv denied 88 NY2d 986; People v Belair, 226 AD2d 1105, 1106).

Upon our review of the record, we conclude that defendant’s plea was knowingly, intelligently and voluntarily entered but that the colloquy concerning the waiver of the right to appeal is insufficient to establish a knowing and voluntary waiver (see generally, People v Callahan, 80 NY2d 273, 280). Thus, although review of defendant’s contention concerning the sentence is not thereby foreclosed, we nonetheless conclude that the sentence is not unduly harsh or severe. (Appeal from Judgment of Onondaga County Court, Burke, J. — Criminal Possession Weapon, 3rd Degree.) Present — Pine, J. P., Lawton, Wisner, Callahan and Fallon, JJ.

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—Judgment unanimously affirmed. Memorandum: County Court did not abuse its discretion in denying the motion of defendant to withdraw his guilty plea to criminal possession of a weapon in the third degree (Penal Law § 265.02 [1031]*1031[4]), a violent felony. The record does not support the contention of defendant that he entered the plea based on misinformation that the promised sentence of a four-year definite term of incarceration would be concurrent with a sentence he was serving on a prior conviction.

Defendant further contends that he was denied effective assistance of counsel because defense counsel took a position adverse to him and became a witness against him when defendant moved to withdraw his guilty plea and because defense counsel did not accurately inform him that, by pleading guilty to a violent felony, the sentence imposed would run consecutive to a sentence he was serving on a prior conviction. The record does not support either contention (cf., People v Burton, 251 AD2d 1020 [decided herewith]). To the extent that the contention that defense counsel misinformed defendant with respect to his sentence is based on matters outside the record, that contention can only be considered in a motion for postjudgment relief (see, CPL 440.10 [1] [h]; People v Hodge, 226 AD2d 1124, lv denied 88 NY2d 986; People v Belair, 226 AD2d 1105, 1106).

Upon our review of the record, we conclude that defendant’s plea was knowingly, intelligently and voluntarily entered but that the colloquy concerning the waiver of the right to appeal is insufficient to establish a knowing and voluntary waiver (see generally, People v Callahan, 80 NY2d 273, 280). Thus, although review of defendant’s contention concerning the sentence is not thereby foreclosed, we nonetheless conclude that the sentence is not unduly harsh or severe. (Appeal from Judgment of Onondaga County Court, Burke, J. — Criminal Possession Weapon, 3rd Degree.) Present — Pine, J. P., Lawton, Wisner, Callahan and Fallon, JJ.

People v. Gilchrist, 251 A.D.2d 1030, 673 N.Y.S.2d 958, 1998 N.Y. App. Div. LEXIS 7073 (N.Y. Ct. App. 1998).

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