People v. Henley

94 A.D.2d 777, 462 N.Y.S.2d 727, 1983 N.Y. App. Div. LEXIS 18235

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1983
• Status: Published

Opinion

— Appeal by defendant, as limited by his brief, from a sentence of the Supreme Court, Queens County (Weinstein, J.), imposed December 13, 1979, upon his conviction of attempted burglary in the third degree, upon a plea of guilty. Sentence vacated, on the law, and matter remitted to the Supreme Court, Queens County, for resentencing. Defendant pleaded guilty to attempted burglary in the third degree on July 26, 1973. He absconded thereafter. He was arrested in late August, 1979 on other charges. When brought before the court for sentencing on his conviction by plea, defendant denied any recollection of the plea proceedings. Defense counsel informed the court that he had only been assigned to the case that day and therefore had spoken with the defendant without benefit of the record in the case. Counsel requested an adjournment to obtain the record, but the court denied his application and imposed an indeterminate sentence of zero to four years to run consecutively to another term that defendant was then serving. The sentence must be vacated and the matter remitted for resentencing. Inasmuch as defendant was in custody at the time of sentencing, there appears to be no reason on this record why defense counsel’s request for an adjournment to familiarize himself with what was then a six-year-old case should have been denied. Familiarity with a case is an essential element of effective assistance of counsel (see People v Droz, 39 NY2d 457; People v Bennett, 29 NY2d 462), and defendant was entitled to such assistance at sentencing (cf. People v Hannigan, 7 NY2d 317). Damiani, J. P., Mangano, O’Connor and Brown, JJ., concur.