People v. Holbert

Appellate Division of the Supreme Court of New York

People v. Holbert

60 A.D.3d 1399, 876 N.Y.S.2d 273

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

DecidedMarch 20, 2009

StatusPublished

This text of 60 A.D.3d 1399 (People v. Holbert) 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. Holbert, 60 A.D.3d 1399, 876 N.Y.S.2d 273 (N.Y. Ct. App. 2009).

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Opinion

Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered May 29, 2007. The judgment convicted defendant, upon his plea of guilty, of attempted murder in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), defendant contends that the sentence of a determinate term of incarceration of 15 years constitutes cruel and unusual punishment. We reject that contention, inasmuch as it cannot be said that the sentence is “grossly disproportionate to the crime” (People v Broadie, 37 NY2d 100, 111 [1975], cert denied 423 US 950 [1975]; see generally People v Thompson, 83 NY2d 477, 484 [1994]). Also contrary to defendant’s contention, the bargained-for sentence is not unduly harsh or severe. Defendant failed to preserve for our review his further contention that the prosecutor’s sentencing recommendation was “illusory” (see People v Harris, 4 AD3d 770 [2004], lv denied 2 NY3d 762 [2004]) and, in any event, defendant’s contention is without merit. The record establishes that the prosecutor complied with the plea agreement in recommending that defendant be sentenced to a determinate term of incarceration of 15 years (see People v Hannig [appeal No. 1], 258 AD2d 908 [1999], lv denied 93 NY2d 853 [1999]). Present— Hurlbutt, J.P., Martoche, Garni, Green and Pine, JJ.

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Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered May 29, 2007. The judgment convicted defendant, upon his plea of guilty, of attempted murder in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), defendant contends that the sentence of a determinate term of incarceration of 15 years constitutes cruel and unusual punishment. We reject that contention, inasmuch as it cannot be said that the sentence is “grossly disproportionate to the crime” (People v Broadie, 37 NY2d 100, 111 [1975], cert denied 423 US 950 [1975]; see generally People v Thompson, 83 NY2d 477, 484 [1994]). Also contrary to defendant’s contention, the bargained-for sentence is not unduly harsh or severe. Defendant failed to preserve for our review his further contention that the prosecutor’s sentencing recommendation was “illusory” (see People v Harris, 4 AD3d 770 [2004], lv denied 2 NY3d 762 [2004]) and, in any event, defendant’s contention is without merit. The record establishes that the prosecutor complied with the plea agreement in recommending that defendant be sentenced to a determinate term of incarceration of 15 years (see People v Hannig [appeal No. 1], 258 AD2d 908 [1999], lv denied 93 NY2d 853 [1999]). Present— Hurlbutt, J.P., Martoche, Garni, Green and Pine, JJ.

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Bluebook (online)

60 A.D.3d 1399, 876 N.Y.S.2d 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-holbert-nyappdiv-2009.

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