People v. Galvin

• Decision Date: 29 April 1998
• Citation: 249 A.D.2d 946,671 N.Y.S.2d 363
• Parties: 1998 N.Y. Slip Op. 4206 PEOPLE of the State of New York, Respondent, v. Robert GALVIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 363

671 N.Y.S.2d 363

1998 N.Y. Slip Op. 4206

PEOPLE of the State of New York, Respondent, v. Robert GALVIN, Appellant.

Supreme Court of New York, Appellate Division Fourth Department.

April 29, 1998.

Ronald C. Valentine, Lyons, for appellant.

Philip Glickman, Rochester, for appellant.

Richard M. Healy, Lyons, for respondent.

MEMORANDUM:

We reject the contention of defendant that County Court erred in refusing to accept his guilty plea. Where, as here, the plea is to less than the entire indictment, the decision whether to accept the plea "is left entirely to the discretion of the People, subject to [the court's] consent" (People v. Haas, --- A.D.2d ----, ----, 666 N.Y.S.2d 324, 325; see, People v. Miller, 126 A.D.2d 868, 869, 511 N.Y.S.2d 160, lv. denied 69 N.Y.2d 884, 515 N.Y.S.2d 1032, 507 N.E.2d 1102). Further, because defendant's factual allocution raised an agency defense, the court properly conducted further inquiry (see, People v. Lopez, 71 N.Y.2d 662, 665-666, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Mosher, 222 A.D.2d 1034, 636 N.Y.S.2d 246) and, upon such inquiry, granted the prosecutor's request to reject the plea.

We reject the further contention of defendant that he was deprived of effective assistance of counsel; "the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation," establish that defendant received meaningful representation (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400; see, People v. Flores, 84 N.Y.2d 184, 186-187, 615 N.Y.S.2d 662, 639 N.E.2d 19).

We reject defendant's contention that the sentence is illegal. "The imposition of a more severe sentence after trial than that offered to defendant pursuant to a plea offer that he rejected, without more, does not support the contention of defendant that he was penalized for exercising his right to go to trial" (People v. Jones, 229 A.D.2d 980, 645 N.Y.S.2d 692, lv. denied 89 N.Y.2d 925, 654 N.Y.S.2d 727, 677 N.E.2d 299; see, People v. Pena, 50 N.Y.2d 400, 411-412, 429 N.Y.S.2d 410, 406 N.E.2d 1347, rearg. denied 51 N.Y.2d 770, 432 N.Y.S.2d 1029, 411 N.E.2d 799, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814; People v. Reed, 222 A.D.2d 616, 635 N.Y.S.2d 289, lv. denied 87 N.Y.2d 1024, 644 N.Y.S.2d 157, 666 N.E.2d 1071). However, we modify the judgment as a matter of discretion in the interest of justice by reducing the sentences imposed for two counts of criminal sale of...