People v. Welch

Appellate Division of the Supreme Court of New York

People v. Welch

234 A.D.2d 404, 651 N.Y.S.2d 885, 1996 N.Y. App. Div. LEXIS 12940

Appellate Division of the Supreme Court of the State of New York·Decided December 9, 1996·Published·Cited by 1 cases

Opinion

—Appeal by the defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered April 9, 1996, convicting him of attempted criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for resentencing.

Contrary to the defendant’s contention, we find that he was not denied the effective assistance of trial counsel. Rather, counsel’s advocacy on behalf of his client throughout the case, including his negotiation of a highly favorable plea agreement, supports the conclusion that the defendant received meaningful representation (see, People v Baldi, 54 NY2d 137).

However, the record demonstrates that the court did not conduct a complete inquiry as required by CPL 400.21 (3) prior to adjudicating the defendant a second felony offender and imposing a sentence commensurate therewith (see generally, People v Kennedy, 151 AD2d 831). Accordingly, we remit the matter for resentencing in accordance with the procedures set [405]*405forth in CPL 400.21. Miller, J. P., Ritter, Sullivan, Friedmann and Krausman, JJ., concur.

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—Appeal by the defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered April 9, 1996, convicting him of attempted criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for resentencing.

Contrary to the defendant’s contention, we find that he was not denied the effective assistance of trial counsel. Rather, counsel’s advocacy on behalf of his client throughout the case, including his negotiation of a highly favorable plea agreement, supports the conclusion that the defendant received meaningful representation (see, People v Baldi, 54 NY2d 137).

However, the record demonstrates that the court did not conduct a complete inquiry as required by CPL 400.21 (3) prior to adjudicating the defendant a second felony offender and imposing a sentence commensurate therewith (see generally, People v Kennedy, 151 AD2d 831). Accordingly, we remit the matter for resentencing in accordance with the procedures set [405]*405forth in CPL 400.21. Miller, J. P., Ritter, Sullivan, Friedmann and Krausman, JJ., concur.

People v. Welch, 234 A.D.2d 404, 651 N.Y.S.2d 885, 1996 N.Y. App. Div. LEXIS 12940 (N.Y. Ct. App. 1996).

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Opinion

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