People v. DeGaspard
| Decision Date | 21 February 1991 |
| Parties | The PEOPLE of the State of New York, Respondent, v. George F. DeGASPARD, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Mark B. Harris, Albany, for appellant.
Sol Greenberg, Dist. Atty. (Michael J. Connolly, of counsel), Albany, for respondent.
Before MAHONEY, P.J., and CASEY, WEISS, CREW and HARVEY, JJ.
Appeal from a judgment of the County Court of Albany County (Turner, Jr., J.), rendered November 4, 1987, convicting defendant upon his plea of guilty of the crimes of grand larceny in the second degree and grand larceny in the third degree.
Defendant was indicted in three separate indictments by a Grand Jury charging him with two counts of assault in the second degree, escape in the second degree and resisting arrest; two counts of grand larceny in the third degree; and two counts of grand larceny in the second degree and one count of grand larceny in the third degree, respectively. Thereafter, the People moved to permit defendant to withdraw his not guilty pleas to all three indictments and substitute therefor a plea of guilty to one count of grand larceny in the third degree with respect to the second indictment and one count of grand larceny in the second degree with respect to the third indictment, in full satisfaction of all three indictments and of a felony offense for which he had been arrested but not yet indicted. As part of the plea negotiations it was agreed that if at the time of sentencing defendant had made full restitution for his thefts, he would receive an indeterminate prison sentence of 2 to 4 years on each count, the sentences to run concurrently; if one half of the restitution had been made then the prison sentence for the charge of grand larceny in the second degree would be 3 to 6 years, to run concurrently with the sentence imposed on the charge of grand larceny in the third degree, and if less than half of the restitution was made then the longer prison sentence would be 4 to 8 years, to run concurrently with the sentence imposed on the charge of grand larceny in the third degree. Defendant consented to the application whereupon he was advised as to the implications of his plea and County Court and the District Attorney questioned him extensively as to his understanding of the plea and the proposed sentence structure. He was also asked if he was satisfied with the representation provided him by defense counsel and he said he was. Based upon the plea colloquy County Court determined that defendant was voluntarily offering his pleas and they were accepted.
At the time of sentencing no restitution had been made. Defendant moved for an adjournment to obtain new counsel. He also moved to withdraw his guilty pleas based on his innocence and because they were the result of duress and coercion. Finally, he objected to being sentenced as a second felony offender in that the underlying Federal charge could not legally form the basis for such adjudication. County Court denied the motions without a hearing and sentenced defendant to an indeterminate prison term of 3 1/2 to 7 years on his conviction for grand larceny in the second degree and 1 1/3 to 4 years on his conviction for grand larceny in the third degree, said sentences to be served concurrently.
On this appeal defendant contends that the plea agreement was not legal, that County Court erred in denying defendant a hearing regarding his request to withdraw his guilty pleas and regarding his status as a second felony offender, and that County Court improperly sentenced him. Additionally, defendant claims that his conviction must be vacated due to ineffective assistance of counsel.
Defendant urges that the plea bargain was illegal because it encompassed dismissal of a felony complaint for which he had not yet been indicted. While County Court had no authority to dismiss the felony complaint (see, Matter of Morgenthau v. Roberts, 65 N.Y.2d 749, 492 N.Y.S.2d 21, 481 N.E.2d 561) and did not purport to do so, the District Attorney had the discretion and authority to decline to continue prosecution of that offense (see, Matter of Charles AA., 157 A.D.2d 921, 550 N.Y.S.2d 180, lv. denied 76 N.Y.2d 713, 563 N.Y.S.2d 768, 565 N.E.2d 517). His agreement to do so as part of a negotiated plea is certainly legal.
Defendant next contends that his guilty plea to grand larceny in the second degree, a class D felony, permitted a maximum sentence of 3 1/2 to 7 years as a second felony offender (Penal Law § 70.06[2], [3], [4][b]. However, because the plea agreement provided for a sentence of 4 to 8 years in the event that defendant failed to make restitution of $11,000, defendant claims that his plea was illegal. We disagree. We view County Court's action as an inadvertent misstatement. At the time of sentencing County Court properly sentenced defendant to a prison term of 3 1/2 to 7 years. It has long been the rule that a court has the inherent power to correct its own error in imposing sentence (see, Matter of Campbell v. Pesce, 60 N.Y.2d 165, 168, 468 N.Y.S.2d 865, 456 N.E.2d 806). Furthermore, since the correction inured to defendant's benefit, we are hard pressed to discern how he now claims to be prejudiced.
At sentencing, defendant moved to withdraw his guilty pleas based upon his innocence as well as fraud, mistake and extreme distress due to his wife's ill health. Additionally, defendant moved for additional time to obtain new counsel because his attorney had not effectively represented him. Defendant contends that County Court erred in denying him a hearing concerning withdrawal of his pleas and his claim of ineffective assistance of counsel. We disagree. The question of whether defendant should be permitted to withdraw his plea rests in the sound discretion of the trial court and a hearing will be granted only in rare instances. Defendant's conclusory statements of coercion and duress did not require a hearing (see, People v. Howard, 138 A.D.2d 525, 526 N.Y.S.2d 132). Additionally, defendant's belated protestation of innocence should not have resulted in the withdrawal of his plea or a hearing where he was afforded sufficient opportunity to state the basis for his withdrawal application (see, People v. Baldwin, 130 A.D.2d 497, 515 N.Y.S.2d 81, lv. denied 70 N.Y.2d 929, 524 N.Y.S.2d 680, 519 N.E.2d 626). Defendant's detailed account of the commission of his crimes without apparent hesitation and without protestation of innocence during the plea allocution presented an issue of his credibility which County Court could properly resolve against him without a hearing (see, People v. Lynch, 156 A.D.2d 884, ...
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