People v. Polanco

Appellate Division of the Supreme Court of New York

People v. Polanco

192 A.D.2d 393, 596 N.Y.S.2d 366, 1993 N.Y. App. Div. LEXIS 3713

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

DecidedApril 15, 1993

StatusPublished

Cited by7 cases

This text of 192 A.D.2d 393 (People v. Polanco) 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. Polanco, 192 A.D.2d 393, 596 N.Y.S.2d 366, 1993 N.Y. App. Div. LEXIS 3713 (N.Y. Ct. App. 1993).

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Opinion

—-Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered June 4, 1991, convicting defendant, upon his guilty plea, of criminal possession of a controlled substance in the second degree, and sentencing him as a second felony offender to 6 years to life, unanimously affirmed.

Defendant’s contention that the sentencing court deprived him of an adequate opportunity to secure the minutes related to his predicate felony conviction is without merit. The court granted an extended period of time to counsel, who had assured the court that the minutes could be secured. At the plea proceeding, defendant made all Boykin waivers, acknowledged that he was pleading voluntarily and knowingly, and that no promises had been made. Defendant also acknowledged the range of sentences which could be imposed, depending on whether or not he controverted the predicate felony statement. Counsel’s conclusory claim, at the adjourned sentencing proceeding, that the relevant minutes had been misplaced by the court reporter, was an insufficient basis to permit the defendant to withdraw his plea, or to be sentenced as a first felony offender. Nor were defendant’s bare conclusory allegations of a constitutional infirmity in the predicate felony conviction sufficient to carry his burden of demonstrating that the prior conviction was unconstitutionally obtained (see, People v Spencer, 32 NY2d 446, 450; People v Thompson, 140 AD2d 652). It has been noted that "it defies logic to presume from the mere unavailability of a transcript * * * [394]*394that the defendant was not advised of his rights” (Parke v Raley, 506 US —, —, 113 S Ct 517, 524). Nor was it improvident for the court to impose sentence on the adjourned date, particularly in view of prior accommodations which had been made to defendant (see, People v Fox, 117 AD2d 818). Concur— Murphy, P. J., Ellerin, Wallach and Asch, JJ.

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—-Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered June 4, 1991, convicting defendant, upon his guilty plea, of criminal possession of a controlled substance in the second degree, and sentencing him as a second felony offender to 6 years to life, unanimously affirmed.

Defendant’s contention that the sentencing court deprived him of an adequate opportunity to secure the minutes related to his predicate felony conviction is without merit. The court granted an extended period of time to counsel, who had assured the court that the minutes could be secured. At the plea proceeding, defendant made all Boykin waivers, acknowledged that he was pleading voluntarily and knowingly, and that no promises had been made. Defendant also acknowledged the range of sentences which could be imposed, depending on whether or not he controverted the predicate felony statement. Counsel’s conclusory claim, at the adjourned sentencing proceeding, that the relevant minutes had been misplaced by the court reporter, was an insufficient basis to permit the defendant to withdraw his plea, or to be sentenced as a first felony offender. Nor were defendant’s bare conclusory allegations of a constitutional infirmity in the predicate felony conviction sufficient to carry his burden of demonstrating that the prior conviction was unconstitutionally obtained (see, People v Spencer, 32 NY2d 446, 450; People v Thompson, 140 AD2d 652). It has been noted that "it defies logic to presume from the mere unavailability of a transcript * * * [394]*394that the defendant was not advised of his rights” (Parke v Raley, 506 US —, —, 113 S Ct 517, 524). Nor was it improvident for the court to impose sentence on the adjourned date, particularly in view of prior accommodations which had been made to defendant (see, People v Fox, 117 AD2d 818). Concur— Murphy, P. J., Ellerin, Wallach and Asch, JJ.

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Bluebook (online)

192 A.D.2d 393, 596 N.Y.S.2d 366, 1993 N.Y. App. Div. LEXIS 3713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-polanco-nyappdiv-1993.

Opinion

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