People v. Davis

• Citation: 556 N.Y.S.2d 664,161 A.D.2d 787
• Parties: The PEOPLE, etc., Respondent, v. Bernard DAVIS, Appellant.
• Decision Date: 29 May 1990
• Court: New York Supreme Court Appellate Division

Page 664

556 N.Y.S.2d 664

161 A.D.2d 787

The PEOPLE, etc., Respondent, v. Bernard DAVIS, Appellant.

Supreme Court, Appellate Division Second Department.

May 29, 1990.

Michael E. Lipson, Garden City, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Alix F. Kucker-Horland, of counsel), for respondent.

Before MANGANO, P.J., and KUNZEMAN, RUBIN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Farlo, J.), rendered July 21, 1987, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence of 3 1/2 to 7 years imprisonment.

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 Supreme Court, Queens County, for resentencing.

The defendant contends that his guilty plea to the lesser included offense of attempted burglary in the second degree was not voluntarily and knowingly entered because it was predicated upon his mistaken belief that the imposed sentence would run concurrently with the undischarged sentence of imprisonment for his prior felony conviction.

At the time defendant pleaded guilty, the court promised to impose a sentence of "three and a half to seven years in jail as a second felony offender." Given the defendant's status as a second felony offender, the court was required, pursuant to Penal Law § 70.25(2-a), to impose a sentence that runs consecutively with any undischarged sentence for the defendant's prior conviction. A review of the plea minutes discloses that no promise was made by the court that the defendant's sentence would run concurrently with any undischarged parole time. Any off-the-record promise of a concurrent sentence is belied by the defendant's acknowledgment during the plea allocution that no other promises had been made to induce his guilty plea. No inquiry was ever made by the defendant or his attorney as to whether the sentence would run consecutively with the undischarged sentence. Under the circumstances, we can only presume that at the time the plea was entered, both the court and defendant's attorney were aware that a consecutive sentence was required by Penal Law § 70.25(2-a) and that counsel so advised his client (see, People v. Jones, 88 A.D.2d 1096, 453 N.Y.S.2d 60; People v. Verderosa, 80 A.D.2d 930, 437 N.Y.S.2d 783). Since an objective reading of the plea bargain was susceptible to but one interpretation, the defendant's misunderstanding of the agreement or disappointment with his sentence does not suffice as a reason for vacating his guilty plea (see, People v. Cataldo, 39 N.Y.2d 578, 384 N.Y.S.2d 763, 349 N.E.2d 863; People v. Welch, 129 A.D.2d 752, 514 N.Y.S.2d 513; People v. Latine, 71 A.D.2d 697, 418 N.Y.S.2d 240; People v. Lang, 55 A.D.2d 790, 389 N.Y.S.2d 662).

The defendant contends that this case is distinguishable because the Trial Judge was also acting under a mutual misapprehension of law, as evidenced by his pronouncement, at sentence, that the indeterminate sentence would run "concurrently" with parole time owed. This contention is negated by the trial court's disposition of the defendant's pro se post-judgment motion. Although the order of the Trial Judge dated June 5, 1989, disposing of that motion is dehors the record (see, People v. Piparo, 134 A.D.2d 295, 520 N.Y.S.2d 621), we have taken judicial notice of these court documents (see, People ex rel. Glidden v. Nemier, 133 A.D.2d 487, 519 N.Y.S.2d 287; Casson v. Casson, 107 A.D.2d 342, 344, 486 N.Y.S.2d 191; Matter of Bruches, 67 A.D.2d 456, 460, n. 1, 415 N.Y.S.2d 664; People v. Dritz, 259 App.Div. 210, 18 N.Y.S.2d 455; see generally, 1 Newman, New York Appellate Practice, § 7.09[6]. When confronted with a discrepancy between the stenographic minutes of the sentence (reflecting a concurrent sentence) and the order of commitment (reflecting a consecutive sentence), the Sentencing Judge found that it was his intention to impose a consecutive sentence and that he had merely misspoke when pronouncing sentence. The defendant never applied for permission to appeal from the order dated June 5, 1989 which disposes of any claim that the court had misapprehended the law and the plea bargain. While it is within the trial court's inherent power to correct an error...