People v. Modica

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: WACHTLER
• Citation: People v. Modica, 64 N.Y.2d 828, 486 N.Y.S.2d 931, 476 N.E.2d 330 (N.Y. 1985)
• Decision Date: 07 February 1985
• Parties: , 476 N.E.2d 330 The PEOPLE of the State of New York, Respondent, v. Victor K. MODICA, Appellant.

Page 931

486 N.Y.S.2d 931

64 N.Y.2d 828, 476 N.E.2d 330

The PEOPLE of the State of New York, Respondent, v. Victor K. MODICA, Appellant.

Court of Appeals of New York.

Feb. 7, 1985.

George Grun, Riverhead, John F. Middlemiss, Jr., Hauppauge, and Alfred J. Cicale, New York City, for appellant.

Patrick Henry, Dist. Atty., Riverhead (Steven A. Hovani, Asst. Dist. Atty., Riverhead, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

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...