People v. Modica
| Decision Date | 07 February 1985 |
| Citation | 64 N.Y.2d 828,476 N.E.2d 330,486 N.Y.S.2d 931 |
| Parties | , 476 N.E.2d 330 The PEOPLE of the State of New York, Respondent, v. Victor K. MODICA, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 100 A.D.2d 559, 473 N.Y.S.2d 265, should be modified and the case remitted to Supreme Court for resentence and, as so modified, should be affirmed.
The voluntariness of defendant's plea involves a mixed question of law and fact beyond the review powers of this court (People v. Harrison, 57 N.Y.2d 470, 477, 457 N.Y.S.2d 199, 443 N.E.2d 447). Moreover, the mistake of counsel with respect to minimum sentence does not rise to the level of ineffective assistance of counsel, the test being "reasonable competence", not perfect representation (People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400), there being no question that the bargained-for sentence, though not in fact the minimum, was substantially less than the maximum, and no question that the Trial Judge and both attorneys were laboring under the same misapprehension.
But though the plea cannot be set aside for either of the foregoing reasons, the sentence, which was imposed as a second violent felony offender although the predicate offense was not designated a violent felony until 24 days after defendant committed the robbery as to which he pleaded guilty, was illegal and, therefore, as the People conceded on oral argument, there must be a remand for resentencing.
Order modified and case remitted to Supreme Court, Suffolk County, for resentence in accordance with the memorandum herein and, as so modified, affirmed.
To continue reading
Request your trial
-
People v. Lewis
...not mean preferred or perfect representation ( Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Modica, 64 N.Y.2d 828, 486 N.Y.S.2d 931, 476 N.E.2d 330 [1985];Baldi at 146, 444 N.Y.S.2d 893, 429 N.E.2d 400). As such, “the claim of ineffectiveness is ultimately concern......
-
People v. Borcyk
...representation’ " ( People v. Ford , 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995], quoting People v. Modica , 64 N.Y.2d 828, 829, 486 N.Y.S.2d 931, 476 N.E.2d 330 [1985] ), and defense counsel's representation need not be completely error-free. Thus, courts are "properly skep......
-
People v. Benevento
...'perfect representation' " (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265, quoting People v. Modica, 64 N.Y.2d 828, 829, 486 N.Y.S.2d 931, 476 N.E.2d 330), the record before us demonstrates that defense counsel's representation was less than meaningful under the circu......
-
People v. Fuller, 4399.
...265 [quotation omitted]; People v. Aiken, 45 N.Y.2d 394, 398, 408 N.Y.S.2d 444, 380 N.E.2d 272 [quotation omitted]; People v. Modica, 64 N.Y.2d 828, 486 N.Y.S.2d 931, 476 N.E.2d 330 [quotation omitted] ). That a defendant was convicted may have little to do with counsel's performance, and c......