People v. Charles
| Court | New York Supreme Court Appellate Division |
| Writing for the Court | ROSENBLATT |
| Citation | 683 N.Y.S.2d 438 |
| Parties | The PEOPLE, etc., respondent, v. Gerald CHARLES, appellant. . Supreme Court of New York, Appellate Division, Second Department |
| Decision Date | 16 December 1998 |
Page 438
v.
Gerald CHARLES, appellant.
Second Department.
Second Department.
Lynn W.L. Fahey, New York, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Thomas S. Burka of counsel), for respondent.
Appeal by the defendant from two judgments of the Supreme Court, Kings County (Juviler, J.), both rendered September 29, 1997, convicting him of sodomy in the first degree under Indictment No. 12213/96, and sodomy in the first degree under Indictment No. 3775/97, upon his pleas of guilty, and sentencing him to an indeterminate term of 4 to 8 years imprisonment on his conviction under Indictment No. 12213/96 to run concurrently with an indeterminate term of 4 to 8 years imprisonment on his conviction under Indictment No. 3775/97.
ORDERED that the judgment under Indictment No. 3775/97 is affirmed; and it is further,
ORDERED that the judgment under Indictment No. 12213/96 is modified, on the law, by reducing the sentence imposed thereon from an indeterminate term of 4 to 8 years imprisonment to an indeterminate term of 2 2/3 to 8 years imprisonment; as so modified, the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant's pro se motion to vacate his pleas of guilty (see, CPL 220.60[3]; People v. Ellerbe, 237 A.D.2d 299, 655 N.Y.S.2d 409). The defendant's protestations of innocence and of coercion are belied by the record (see, People v. Brown, --- A.D.2d ----, 675 N.Y.S.2d 555; People v. Sider, 232 A.D.2d 666, 649 N.Y.S.2d 455; People v. Evans, 204 A.D.2d 346, 614 N.Y.S.2d 151). The defendant's claim that he was coerced by his attorney's warning regarding the strength of the prosecution's case is without merit (see, People v. Samuel, 208 A.D.2d 776, 617 N.Y.S.2d 494; People v. Anthony, 188 A.D.2d 477, 591 N.Y.S.2d 181).
The defendant committed the crime of sodomy in the first degree under Indictment No. 12213/96 in 1993. Accordingly, as the People concede, the Supreme Court erred in imposing a minimum term of imprisonment which was one-half of the maximum term of that count (see, Penal Law former § 70.02[4] ). The court should have imposed a minimum term of imprisonment of one-third of the maximum term, to run concurrently with the other sentence of an indeterminate term of 4 to 8 years...
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...N.Y.S.2d 710 93 N.Y.2d 898, 711 N.E.2d 986 People v. Charles Court of Appeals of New York April 12, 1999 Ciparick, J. --- A.D.2d ----, 683 N.Y.S.2d 438 App.Div. 2, Kings Denied. ...
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People v. Charles
...N.Y.S.2d 710 93 N.Y.2d 898, 711 N.E.2d 986 People v. Charles Court of Appeals of New York April 12, 1999 Ciparick, J. --- A.D.2d ----, 683 N.Y.S.2d 438 App.Div. 2, Kings Denied. ...