People v. St. Claire

99 A.D.2d 982, 473 N.Y.S.2d 19, 1984 N.Y. App. Div. LEXIS 17404

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 1984
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Harold J. Rothwax, J.), rendered November 1, 1982, convicting defendant of criminal possession of stolen property in the first degree and sentencing her to an indeterminate term of imprisonment of from 2Vs to 7 years’ incarceration, affirmed, without prejudice to a motion by the defendant pursuant to CPL 440.20 (subd 1) to set aside the sentence as illegally imposed. 1 Notwithstanding the District Attorney’s concession that the record discloses a violation of the provision of CPL 380.50 which affords a defendant a right to make a personal statement prior to sentencing, a concession which we have considered carefully, we are not persuaded from our examination of the record that any such violation took place. By far the more probable interpretation of the events disclosed by the record is that the defendant indicated by an affirmative nod a wish to speak, but thereafter did not in fact speak, f It seems to us highly unlikely that the experienced sentencing Judge carefully noted in the record that defendant had manifested a wish to speak and then proceeded to ignore that request, and that this occurred without any comment or objection either by the defendant or her forceful and articulate counsel. K If such a violation in fact occurred, the issue is more properly raised under the circumstances presented by a motion pursuant to CPL 440.20 (subd 1) to set aside the sentence as having been illegally imposed, a motion that would permit a definitive resolution of any factual question that may be thought to be presented. (See Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 440.20, p 411.) Concur — Kupferman, J. P., Sandler, Carro, Milonas and Alexander, JJ.