People v. Pitts

75 A.D.2d 719, 426 N.Y.S.2d 993, 1980 N.Y. App. Div. LEXIS 11195

Opinion

Judgment unanimously affirmed. Memorandum: Defendant has pleaded guilty to attempted rape, first degree, in full satisfaction of three indictments containing multiple counts. At the time of the plea, counsel stated on the record that the plea was based on representations of the court and the prosecutor that the sentence would be 0 to 5 years and would run concurrently with an undischarged term defendant was serving in the Erie County Penitentiary. The court accepted counsel’s statement and asked the defendant if that was his understanding of the plea bargain. At the time of sentencing the court imposed a 0- to 5-year term, but in an ambiguous comment refused counsel’s request to specify that the term was concurrent. It did not direct, however, that the sentence was to be consecutive with the existing undischarged term. Accordingly, the sentences are to run concurrently by operation of law (Penal Law, § 70.25, subd 1). (Appeal from judgment of Erie County Court—attempted rape, first degree.) Present —Simons, J. P., Hancock, Jr., Schnepp, Doerr and Moule, JJ.