People v. Milanes

Appellate Division of the Supreme Court of New York

People v. Milanes

128 A.D.3d 492, 8 N.Y.S.3d 332

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

DecidedMay 14, 2015

Docket15101 6230/06

StatusPublished

This text of 128 A.D.3d 492 (People v. Milanes) 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. Milanes, 128 A.D.3d 492, 8 N.Y.S.3d 332 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, New York County (Larry R. Stephen, J.), entered March 22, 2012, as amended October 7, 2014, which denied defendant’s CPL 440.10 and 440.20 motion to vacate a judgment of conviction rendered January 4, 2007 and set aside the sentence, unanimously affirmed.

Defendant’s claim under Padilla v Kentucky (559 US 356 [2010]) is unavailing, because that decision has no retroactive application to this case (People v Baret, 23 NY3d 777 [2014]).

*493 There is no basis for setting aside defendant’s sentence. While the plea minutes establish that defendant pleaded guilty to attempted third-degree criminal possession of a controlled substance, court records mistakenly indicated that the plea was to fourth-degree possession. Defendant received his promised sentence of probation, which was lawful under either of these class C felonies, and the motion court granted the only remedy necessary, which was a correction of the error in the records. Concur — Tom, J.P., Sweeny, Andrias, Moskowitz and Gische, JJ.

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Order, Supreme Court, New York County (Larry R. Stephen, J.), entered March 22, 2012, as amended October 7, 2014, which denied defendant’s CPL 440.10 and 440.20 motion to vacate a judgment of conviction rendered January 4, 2007 and set aside the sentence, unanimously affirmed.

Defendant’s claim under Padilla v Kentucky (559 US 356 [2010]) is unavailing, because that decision has no retroactive application to this case (People v Baret, 23 NY3d 777 [2014]).

*493 There is no basis for setting aside defendant’s sentence. While the plea minutes establish that defendant pleaded guilty to attempted third-degree criminal possession of a controlled substance, court records mistakenly indicated that the plea was to fourth-degree possession. Defendant received his promised sentence of probation, which was lawful under either of these class C felonies, and the motion court granted the only remedy necessary, which was a correction of the error in the records. Concur — Tom, J.P., Sweeny, Andrias, Moskowitz and Gische, JJ.

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Bluebook (online)

128 A.D.3d 492, 8 N.Y.S.3d 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-milanes-nyappdiv-2015.

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