People v. Cates
| Decision Date | 09 October 1984 |
| Citation | 104 A.D.2d 895,480 N.Y.S.2d 512 |
| Parties | The PEOPLE, etc., Respondent, v. Ronald CATES, Appellant. |
| Court | New York Supreme Court — Appellate Division |
David Pomerantz, Garden City, for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Peter A. Weinstein and Anthea H. Bruffee, Brooklyn, of counsel), for respondent.
Before TITONE, J.P., and BRACKEN, NIEHOFF and RUBIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant, as limited by his brief, from a sentence of the Supreme Court, Kings County (Coffinas, J.), imposed October 4, 1983, the sentence being an indeterminate term of imprisonment of one and one-half to three years, upon his plea of guilty to grand larceny in the third degree (COOPER, J., at plea).
Sentence affirmed.
On January 27, 1977, defendant pleaded guilty to grand larceny in the third degree in satisfaction of a 91-count indictment charging him with, inter alia, converting and forging numerous official checks and documents of his employer, the Department of Social Services. At that time, defendant was fully made aware that the plea was accepted on the basis that he would be sentenced to two to four years' imprisonment, as a second-felony offender. Defendant acknowledged that he understood that such a sentence would be imposed.
Defendant failed to appear for sentencing and a bench warrant issued. Following his arrest for an intervening crime, defendant was finally brought before Justice COFFINAS for sentencing, Justice COOPER who accepted the original plea having died in the interim.
Defense counsel advised the court, after several adjournments, that defendant desired to controvert the predicate felony statement. Defendant claimed that any felonies prior to September 1, 1973 could not be utilized for predicate felony purposes and that a 1971 drug conviction, listed as a felony, was actually for a misdemeanor and that his attorney at the time had told him that it was a misdemeanor. Although first stating that it intended to impose the promised sentence and declining to adjourn the matter further, the court then imposed a sentence of one and one-half to three years' imprisonment upon the condition that defendant waive "any and all rights pertaining to this matter * * * will then accept this sentence". The People strenuously objected, but the defendant affirmatively expressed his assent.
While the procedure employed at sentence was improper, it was in derogation of the People's rights (cf. CPL 220.10, subd. 4; People v. Farrar, 52 N.Y.2d 302, 437 N.Y.S.2d 961, 419 N.E.2d 864; Matter of Blumberg v. Lennon, 44 A.D.2d 769, 354 N.Y.S.2d 261), and defendant is not entitled to reversal. It is axiomatic that the People will be strictly held to the terms of a plea bargain and we deem it equally appropriate that a defendant fully aware of the consequences similarly be bound, absent a constitutional, statutory, or other public policy violation (People v. Fleming, 157 Cal.App.3d 238, 203 Cal.Rptr. 618; cf. L.1984, ch. 671; People v. Thompson, 60 N.Y.2d 513, 520, 470 N.Y.S.2d 551, 458 N.E.2d 1228; People v. Williams, 36 N.Y.2d 829, 370 N.Y.S.2d 904, 331 N.E.2d 684, cert. den. 423 U.S. 873, 96 S.Ct. 141, 46 L.Ed.2d 104).
Further, there was no impropriety in denying a hearing, which defendant requested pursuant to CPL 400.21. As in People v. Blair, 59 A.D.2d 767, 398 N.Y.S.2d 718, this defendant of a felony. Secondly, aside from any question with respect to the challenged 1971 drug conviction, defendant had a prior Federal conviction for forging and passing a United States Treasury check. This conviction clearly meets the criteria set forth in section 70.06 of the Penal Law for second felony offender status (see Penal Law, § 170.15; People v. Morse, 62 N.Y.2d 205, 476 N.Y.S.2d 505, 465 N.E.2d 12; People v. Balfour, 95 A.D.2d 812, 813, 463 N.Y.S.2d 859).
Defendant's claim that the second felony offender statutory scheme is unconstitutional because it does not provide guidelines to insure that incarceration is both appropriate and proportionate has not been preserved for appellate review as the point was not raised before the sentencing court (CPL 470.05,...
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