People v. Lopez

135 A.D.2d 739, 522 N.Y.S.2d 641, 1987 N.Y. App. Div. LEXIS 52680

Opinion

—Appeal by the defendant from two judgments of the Supreme Court, Kings County (Goldman, J.), both rendered December 20, 1983, convicting him of robbery in the first degree and robbery in the second degree under indictment No. 4033/82, upon a jury verdict, and robbery in the second degree under indictment No. 1112/83, upon his plea of guilty, and imposing sentences.

Ordered that the judgment under indictment No. 1112/83 is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith; and it is further,

Ordered that the judgment under indictment No. 4033/82 is affirmed.

With respect to the conviction under indictment No. 4033/ 82, although several comments by the prosecutor in summation were improper, any errors were harmless in view of the overwhelming proof of the defendant’s guilt (see, People v Roopchand, 107 AD2d 35, affd 65 NY2d 837; People v Galloway, 54 NY2d 396). Additionally, contrary to the defendant’s contention, the court’s charge as to evaluation of identification testimony was proper. The sentence imposed under indictment No. 4033/82 was not excessive and does not warrant modification.

The judgment under indictment No. 1112/83 must be modified. The court sentenced the defendant to a greater sentence than that promised at the time of the plea. Inasmuch as the court failed to provide the defendant with the opportunity to withdraw his plea, or to accept the greater sentence, the defendant must be given the opportunity, if he be so advised, to withdraw the plea (cf., People v Pittman, 129 AD2d 592, lv denied 70 NY2d 716; People v Grant, 99 AD2d 536). Mangano, J. P., Lawrence, Weinstein and Rubin, JJ., concur.