People v. Almonte
| Decision Date | 15 November 2001 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>EDWARD ALMONTE, Also Known as BEANO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Mercure, J. P., Spain, Carpinello and Lahtinen, JJ., concur.
Defendant was the subject of an indictment, dated June 8, 1998, charging him with the crimes of criminal sale and criminal possession of a controlled substance in the third degree arising out of his alleged possession and sale of crack cocaine in the City of Amsterdam, Montgomery County, on September 6, 1996. While these charges were pending, defendant was arrested and indicted in the United States District Court for the Southern District of New York on a charge of conspiracy to violate the narcotics laws of the United States (see, 21 USC § 841 [a] [1]; § 846) based upon his alleged drug-related activities from 1992 to November 19, 1996 "in the Southern District of New York and elsewhere."
On December 8, 1998, pursuant to a plea bargain agreement, defendant pleaded guilty to the crime of criminal sale of a controlled substance in the fifth degree in full satisfaction of the indictment. He expressly waived his right to appeal and agreed to be sentenced to a State prison term of 3½ to 7 years. It was further agreed that, if defendant were sentenced on the Federal offenses prior to sentencing on the State charge, the State sentence would run concurrently. The following colloquy occurred:
In January 1999, defendant pleaded guilty to the Federal conspiracy charge for which, in September 1999, he was sentenced to a term of incarceration of 168 months.
In December 1999, defendant moved to vacate his plea to the State charges and to dismiss the indictment by asserting a violation of CPL 40.20, and NY Constitution, article I, § 6. Supreme Court denied the motion, concluding that while the conduct upon which the State indictment was grounded was encompassed within the time frame of the Federal conspiracy charge, there existed no double jeopardy. It reasoned that defendant's guilty plea constituted a conviction and that the sentence levied constituted a judgment upon the conviction. Having entered a plea to the State charge before pleading to the Federal charge, it found that no claim of double jeopardy could be asserted under State law. Sentenced on February 18, 2000 as a second felony offender to the previously agreed upon prison term of 3½ to 7 years, defendant now appeals, asserting claims of double jeopardy and ineffective assistance of counsel.
We affirm. Since defendant entered his plea of guilty to the State charge with full knowledge of the provisions of CPL 40.20, his plea constituted a forfeiture of any claim predicated upon a violation of that statute (see, People v...
To continue reading
Request your trial
-
People v. Horton
...93 A.D.3d 892, 893, 939 N.Y.S.2d 196 [2012], lv denied 19 N.Y.3d 960, 950 N.Y.S.2d 112, 973 N.E.2d 210 [2012] ; People v. Almonte, 288 A.D.2d 632, 633, 732 N.Y.S.2d 705 [2001], lvs denied 97 N.Y.2d 726, 727, 740 N.Y.S.2d 699, 767 N.E.2d 156 [2002] ). The claim that he received the ineffecti......
-
People v. Galunas
...v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182 [1998] [internal brackets and emphasis omitted]; see People v. Almonte, 288 A.D.2d 632, 633, 732 N.Y.S.2d 705 [2001], lvs. denied 97 N.Y.2d 726, 727, 740 N.Y.S.2d 699, 767 N.E.2d 156 [2002] ). In any event, a constitutional doub......
-
People v. Hall
...Defendant's comprehensive waiver of "the right to appeal the conviction on all grounds" encompasses that contention (see, People v Almonte, 288 A.D.2d 632; see also, People v Muniz, 91 N.Y.2d 570, 574-575). In any event, the constitutional prohibition against double jeopardy bars successive......
- People v. Smith