People v. Leo
| Decision Date | 16 November 1998 |
| Parties | 1998 N.Y. Slip Op. 10,387 The PEOPLE, etc., Respondent, v. Andrew LEO, Appellant. . Supreme Court of New York, Appellate Division, Second Department |
| Court | New York Supreme Court — Appellate Division |
Robert C. Mitchell, Riverhead (Monroe A. Semble, of counsel), for appellant.
James M. Catterson, Jr., District Attorney, Riverhead (Patricia Murphy Kraker, of counsel; Pierre Sussman, on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Cotter, J.), rendered May 24, 1995, convicting him of murder in the second degree (three counts) and robbery in the first degree (two counts), upon his plea of guilty, and sentencing him to concurrent indeterminate terms of 12 1/2 to 25 years imprisonment on each conviction of robbery in the first degree, to run consecutively to concurrent indeterminate terms of 25 years to life imprisonment on each conviction of murder in the second degree.
ORDERED that the judgment is modified, on the law, by providing that the term of imprisonment imposed for murder in the second degree under count three of the indictment (felony murder) shall run concurrently with the terms of imprisonment imposed on the convictions of robbery in the first degree; as so modified, the judgment is affirmed.
The defendant's challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review as he failed to make a motion to withdraw the plea pursuant to CPL 220.60(3) or a motion to vacate the judgment of conviction under CPL 440.10 (see, People v. Lopez, 71 N.Y.2d 662, 665-666, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Claudio, 64 N.Y.2d 858, 487 N.Y.S.2d 318, 476 N.E.2d 644). In any event, the record demonstrates that the defendant knowingly and voluntarily entered his guilty plea, and there is no suggestion that the plea was improvident or baseless (see, People v. Menard, 187 A.D.2d 458, 589 N.Y.S.2d 525; People v. DeGraff, 186 A.D.2d 752, 589 N.Y.S.2d 795).
The defendant's contention that his guilty plea should be vacated due to ineffective assistance of counsel is also unpreserved for appellate review (see, People v. Lu Yang Tong, 238 A.D.2d 607, 657 N.Y.S.2d 960; People v. Sierre, 173 A.D.2d 211, 570 N.Y.S.2d 930). In any event, upon review of the record, we find that the defendant was provided with meaningful representation (see, People v. Flores, 84 N.Y.2d 184, 186-187, 615 N.Y.S.2d 662, 639 N.E.2d 19; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
As the People correctly concede, the defendant's sentence for felony murder must be modified to run concurrently with the sentences imposed on the...
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...N.E.2d 1164 [2000], lv. denied upon reconsideration 95 N.Y.2d 892, 715 N.Y.S.2d 385, 738 N.E.2d 789 [2000] ; People v. Leo, 255 A.D.2d 458, 459, 680 N.Y.S.2d 859 [2d Dept.1998], lv. denied 93 N.Y.2d 973, 695 N.Y.S.2d 59, 716 N.E.2d 1104 [1999] ). The People do not contest this authority.Rat......
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