People v. Davis

• Decision Date: 19 March 1987
• Citation: 513 N.Y.S.2d 144,128 A.D.2d 450
• Parties: The PEOPLE of the State of New York, Appellant, v. Pierre DAVIS, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 144

513 N.Y.S.2d 144

128 A.D.2d 450

The PEOPLE of the State of New York, Appellant, v. Pierre DAVIS, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

March 19, 1987.

A.M. Donnelly, A. Rettew, New York City, for appellant.

M. Taubenhaus, New York City, for defendant-respondent.

Before SULLIVAN, J.P., and ROSS, ASCH, MILONAS and SMITH, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Norman C. Ryp, J.), rendered on August 15, 1985, convicting defendant, following a jury trial, of grand larceny in the third degree and sentencing him to a definite term of six months plus four and one-half years probation, is modified on the law, the sentence vacated and the matter remanded for resentencing, and, as so modified, the judgment is otherwise affirmed.

Following a jury trial held in connection with the instant matter, defendant was convicted of grand larceny in the third degree as the result of an incident which occurred on August 16, 1983. On that date, defendant was apprehended by police after snatching a gold chain from the neck of one Robert Langer. Prior to defendant's sentencing, the People filed a predicate felony information, asserting that he had been convicted of robbery in the second degree in Bronx County on February 18, 1977. Defendant then moved to controvert, claiming that while he was the person convicted on the date, time and place described in the predicate felony statement, his previous conviction had been unconstitutionally procured. The trial court conducted a hearing with regard to defendant's allegations, at the conclusion of which the motion was granted, and defendant was sentenced as a first felony offender.

According to the minutes of the 1977 guilty plea, defendant appeared with his attorney in the Bronx County Supreme Court on January 18, 1977. The defendant offered to plead guilty to robbery in the second degree in satisfaction of two separate indictments charging him with a variety of offenses, including armed robbery. In that regard, the district attorney explained that "the defendant and his accomplice robbed Joseph Smith on October 15, 1975, and they used knives and they took money from him." Defendant, although represented by counsel, did not dispute this statement by the People that force had been utilized during the commission of the crime in question. He thereafter explicitly admitted that, together with an accomplice, he "stole some property from one Joseph Smith in Bronx County." Defendant also acknowledged that he was relinquishing his right to "have a trial and have twelve people decide whether [he was] guilty or not." The court accepted the guilty plea and subsequently sentenced defendant to a prison term of from three to nine years. It should be pointed out that the plea and ensuing sentence were the result of an extremely favorable agreement negotiated between the People and the defense attorney.

In granting defendant's motion to controvert the predicate felony information, the trial court concluded that, at best, defendant had pleaded guilty to grand larceny in the third degree and not to robbery in the second degree. However, even if the court were correct and defendant's allocution could be considered the predicate for no more than a conviction of third degree larceny, the fact remains that since grand larceny in the third degree is also a felony, defendant's 1977 guilty plea was to a felony under any conceivable standard. Moreover, at the time that he pleaded, defendant stated that his plea was voluntary and that he understood the terms and consequences of his plea. He never moved to challenge that plea in any way prior to the instant proceeding. An examination of the minutes of the 1977 allocution clearly reveals that defendant was admitting to a forcible taking. Indeed, the court had just informed him that he was pleading guilty to robbery in the second degree, and the prosecutor had just...