People v. Pabellon

Appellate Division of the Supreme Court of New York

People v. Pabellon

108 A.D.2d 608, 485 N.Y.S.2d 64, 1985 N.Y. App. Div. LEXIS 42964

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

DecidedFebruary 5, 1985

StatusPublished

Cited by1 cases

This text of 108 A.D.2d 608 (People v. Pabellon) 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. Pabellon, 108 A.D.2d 608, 485 N.Y.S.2d 64, 1985 N.Y. App. Div. LEXIS 42964 (N.Y. Ct. App. 1985).

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Opinion

Judgment of the Supreme Court, Bronx County (Lawrence Bernstein, J.), rendered October 28, 1983, convicting defendant, upon his plea of guilty, of manslaughter in the first degree and sentencing him to an indeterminate term of 12% to 25 years’ incarceration, is modified, on the law, to the extent of reversing and vacating the sentence and remanding the matter for resentencing, and otherwise affirmed.

The Penal Law authorizes the imposition of a minimum sentence of imprisonment which is one half of the maximum where the defendant is convicted of a class B armed felony offense or where the defendant is a predicate felon. (Penal Law § 70.02 [4]; § 70.04 [4]; § 70.06 [4].) As the People concede, manslaughter in the first degree is not an armed felony offense within the purview of CPL 1.20 (41), and defendant has not been proven to be a predicate felon. Consequently, the court was not warranted in sentencing defendant to a term of imprisonment of 12% to 25 years, and the defendant is entitled to be resentenced. At that time, the People will have an opportunity to file a predicate felony statement, which the defendant may choose to challenge. We do not reach the question of whether the People may withdraw their consent to defendant’s plea under People v Farrar (52 NY2d 302) in the event that defendant is not adjudicated a predicate felon. Consideration of that issue is premature at this time. Concur — Carro, J. P., Asch, Fein and Milonas, JJ.

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Judgment of the Supreme Court, Bronx County (Lawrence Bernstein, J.), rendered October 28, 1983, convicting defendant, upon his plea of guilty, of manslaughter in the first degree and sentencing him to an indeterminate term of 12% to 25 years’ incarceration, is modified, on the law, to the extent of reversing and vacating the sentence and remanding the matter for resentencing, and otherwise affirmed.

The Penal Law authorizes the imposition of a minimum sentence of imprisonment which is one half of the maximum where the defendant is convicted of a class B armed felony offense or where the defendant is a predicate felon. (Penal Law § 70.02 [4]; § 70.04 [4]; § 70.06 [4].) As the People concede, manslaughter in the first degree is not an armed felony offense within the purview of CPL 1.20 (41), and defendant has not been proven to be a predicate felon. Consequently, the court was not warranted in sentencing defendant to a term of imprisonment of 12% to 25 years, and the defendant is entitled to be resentenced. At that time, the People will have an opportunity to file a predicate felony statement, which the defendant may choose to challenge. We do not reach the question of whether the People may withdraw their consent to defendant’s plea under People v Farrar (52 NY2d 302) in the event that defendant is not adjudicated a predicate felon. Consideration of that issue is premature at this time. Concur — Carro, J. P., Asch, Fein and Milonas, JJ.

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Bluebook (online)

108 A.D.2d 608, 485 N.Y.S.2d 64, 1985 N.Y. App. Div. LEXIS 42964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-pabellon-nyappdiv-1985.

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