People v. Mack

223 A.D.2d 383, 637 N.Y.S.2d 2, 1996 N.Y. App. Div. LEXIS 75

Opinion

Judgment, Supreme Court, New York County (Richard Andrias, J.), rendered February 10, 1992, convicting defendant, after a jury trial, of robbery in the first degree (two counts) and robbery in the third degree, and sentencing him, as a second violent felony offender, to consecutive terms of 9 to 18 years, 9 to 18 years and 2 to 4 years, respectively, unanimously affirmed. Order, same court and Justice, entered on or about February 7, 1995, which denied defendant’s motion to vacate the judgment, unanimously affirmed.

Although during plea negotiations, defense counsel, the prosecutor, and the court all labored under the mistaken belief that defendant was a mandatory persistent violent felony offender subject to a minimum sentence of 10 years to life, this mistake was not such as to deprive defendant of effective assistance of counsel (see, People v Modica, 64 NY2d 828). There was no reasonable probability that a more favorable plea bargain would have been struck but for the mistake (see, People v Castellano, 203 AD2d 116, 117, lv denied 83 NY2d 965), nor that even if such were possible, that defendant would have accepted such plea in light of his reported protestations of innocence. Defendant’s other claim that his violent and obnoxious behavior in front of the jury necessitated a mistrial is without merit (see, People v Mabre, 166 AD2d 339, 340, lv denied 77 NY2d 879). Concur—Ellerin, J. P., Rubin, Nardelli, Tom and Mazzarelli, JJ.