People v. Fishon
| Decision Date | 07 November 1983 |
| Citation | 97 A.D.2d 773,468 N.Y.S.2d 185 |
| Parties | The PEOPLE, etc., Respondent, v. Ronald FISHON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lemole McCarthy Magnotti & Peter J. Napolitano, P.C., Staten Island (Paul A. Lemole, Staten Island, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Karen M. Wigle, Brooklyn, of counsel), for respondent.
Before O'CONNOR, J.P., and WEINSTEIN, BRACKEN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 20, 1980, as amended April 17, 1981, convicting him of robbery in the first degree and criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
Judgment, as amended, affirmed.
Defendant pleaded guilty to robbery in the first degree and criminal possession of a weapon in the second degree upon the court's promise that he would be sentenced as a persistent violent felony offender to concurrent indeterminate terms of imprisonment of twelve and one-half years to life and four and one-half to nine years, respectively. Sometime after imposition of the sentences as promised, it was determined that the latter sentence violated section 70.08 of the Penal Law, which mandates a minimum sentence of eight years to life imprisonment for a persistent violent felony offender who stands convicted of a class C felony.
When defendant appeared to be resentenced, he moved to withdraw his plea, and Criminal Term conducted a hearing on the motion. At the hearing, defendant alleged that he had been subjected to surgery and extended hospitalization as a result of certain wounds received at the time of his arrest, and the resulting pain, coupled with the administration of pain-killing medicines, had impaired his ability to knowingly and intelligently plead guilty. In addition, he claimed that his attorney had failed to provide adequate representation, and had, in fact, coerced him to plead guilty. At the conclusion of the hearing, Criminal Term denied defendant's motion and proceeded to resentence him to an indeterminate term of imprisonment of eight years to life, to run concurrently with the previously imposed sentence.
Criminal Term did not abuse its discretion in denying the motion upon the grounds raised by defendant (CPL 220.60, subd. 3). The record of the plea and the testimony of defendant's prior counsel at the hearing on defendant'...
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