People v. Lioto

• Decision Date: 07 May 1999
• Docket Number: No. 1,1
• Citation: 691 N.Y.S.2d 225
• Parties: PEOPLE of the State of New York, Plaintiff-Respondent, v. Kevin LIOTO, Defendant-Appellant. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 225

691 N.Y.S.2d 225

PEOPLE of the State of New York, Plaintiff-Respondent, v. Kevin LIOTO, Defendant-Appellant. (Appeal No. 1.)

Supreme Court, Appellate Division, Fourth Department, New York.

May 7, 1999.

Judith Malkin, Syracuse, for defendant-appellant.

James Maxwell, for plaintiff-respondent.

PRESENT: PINE, J.P., HAYES, WISNER, HURLBUTT and SCUDDER, JJ.

MEMORANDUM:

Contrary to the contention of defendant, the record establishes that his plea of guilty was knowingly, intelligently and voluntarily entered, and that the plea colloquy was not coercive (see generally, People v. Fiumefreddo, 82 N.Y.2d 536, 543-544, 605 N.Y.S.2d 671, 626 N.E.2d 646; People v. Harris, 61 N.Y.2d 9, 19, 471 N.Y.S.2d 61, 459 N.E.2d 170). By the time of sentencing, defendant had twice been found competent, and there is nothing in the record at the time of the plea to suggest that defendant was unable to understand the charges or assist in his defense (see, People v. Franco, 120 A.D.2d 609, 610, 502 N.Y.S.2d 82, lv. denied 68 N.Y.2d 757, 506 N.Y.S.2d 1044, 497 N.E.2d 714; People v. Corwise, 120 A.D.2d 604, 605, 502 N.Y.S.2d 223; People v. Mitchell, 90 A.D.2d 854, 456 N.Y.S.2d 107). Contrary to the contention of defendant, his factual admission of guilt was not coerced by County Court or by defense counsel's alleged misrepresentation concerning the potential term of incarceration. Defendant's reliance on People v. Goldfadden, 145 A.D.2d 959, 536 N.Y.S.2d 331, is misplaced because, in that case, the court provided the misinformation concerning the potential sentence. The court did not err in imposing an enhanced sentence without affording defendant an opportunity to withdraw his plea. The court advised defendant that, if he failed to appear or was rearrested, it would not be bound by its sentencing promise (see, People v. Figgins, 87 N.Y.2d 840, 637 N.Y.S.2d 684, 661 N.E.2d 156; People v. Gonzales, 231 A.D.2d 939, 940, 647 N.Y.S.2d 900, lv. denied 89 N.Y.2d 923, 654 N.Y.S.2d 725, 677 N.E.2d 297; People v. Rumlin, 209 A.D.2d 1051, 619 N.Y.S.2d 476, lv. denied 85 N.Y.2d 866, 624 N.Y.S.2d 385, 648 N.E.2d 805). Finally, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.