People v. Tehonica

Appellate Division of the Supreme Court of New York

People v. Tehonica

46 A.D.3d 942, 847 N.Y.S.2d 257

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

DecidedDecember 6, 2007

StatusPublished

Cited by4 cases

This text of 46 A.D.3d 942 (People v. Tehonica) 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. Tehonica, 46 A.D.3d 942, 847 N.Y.S.2d 257 (N.Y. Ct. App. 2007).

Pincite

Opinion

Kane, J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered September 5, 2006, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the third degree.

Defendant was charged with assault in the second degree and criminal possession of a weapon in the third degree in connection with a bar fight where he struck an individual with a pool cue. During the charge conference following the conclusion of the proof at trial, County Court denied defendant’s request for a justification charge. Defendant then pleaded guilty to attempted criminal possession of a weapon in the third degree in exchange for a prison sentence of IV2 to 3 years, with a recommendation of shock incarceration. The court imposed that sentence, but also ordered defendant to pay $10,889.40 in restitution. Defendant appeals.

By pleading guilty, defendant waived his right to challenge County Court’s ruling on his request for a justification charge (see People v Hansen, 95 NY2d 227, 230-231 [2000]; People v Thompson, 287 AD2d 794, 796 [2001], lv denied 97 NY2d 688 [2001]). This issue, which concerns an evidentiary ruling not a jurisdictional or constitutional matter, does not survive defendant’s guilty plea (see People v Hansen, 95 NY2d at 230-231).

The People concede that restitution was not part of the plea agreement. Consequently, defendant should have been given the opportunity to either withdraw his plea or accept the enhanced [943]*943sentence, which included restitution (see People v Snyder, 23 AD3d 761, 762 [2005]; People v Harrington, 3 AD3d 737, 739 [2004]). We remit for that purpose. If restitution is ordered, a hearing should be held regarding the appropriate amount (see People v Snyder, 23 AD3d at 763).

Mercure, J.P., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Kane, J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered September 5, 2006, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the third degree.

Defendant was charged with assault in the second degree and criminal possession of a weapon in the third degree in connection with a bar fight where he struck an individual with a pool cue. During the charge conference following the conclusion of the proof at trial, County Court denied defendant’s request for a justification charge. Defendant then pleaded guilty to attempted criminal possession of a weapon in the third degree in exchange for a prison sentence of IV2 to 3 years, with a recommendation of shock incarceration. The court imposed that sentence, but also ordered defendant to pay $10,889.40 in restitution. Defendant appeals.

By pleading guilty, defendant waived his right to challenge County Court’s ruling on his request for a justification charge (see People v Hansen, 95 NY2d 227, 230-231 [2000]; People v Thompson, 287 AD2d 794, 796 [2001], lv denied 97 NY2d 688 [2001]). This issue, which concerns an evidentiary ruling not a jurisdictional or constitutional matter, does not survive defendant’s guilty plea (see People v Hansen, 95 NY2d at 230-231).

The People concede that restitution was not part of the plea agreement. Consequently, defendant should have been given the opportunity to either withdraw his plea or accept the enhanced [943]*943sentence, which included restitution (see People v Snyder, 23 AD3d 761, 762 [2005]; People v Harrington, 3 AD3d 737, 739 [2004]). We remit for that purpose. If restitution is ordered, a hearing should be held regarding the appropriate amount (see People v Snyder, 23 AD3d at 763).

Mercure, J.P., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

46 A.D.3d 942, 847 N.Y.S.2d 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-tehonica-nyappdiv-2007.

Opinion

Related

Cite This Page — Counsel Stack