People v. Stewart

• Decision Date: 21 November 1988
• Citation: 144 A.D.2d 601,534 N.Y.S.2d 439
• Parties: The PEOPLE, etc., Respondent, v. Traver STEWART, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 439

534 N.Y.S.2d 439

144 A.D.2d 601

The PEOPLE, etc., Respondent, v. Traver STEWART, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 21, 1988.

Carlucci & Legum, Mineola (Robert J. Carlucci, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Sholom J. Twersky and Randa D. Maher, of counsel), for respondent.

Before BRACKEN, J.P., and KUNZEMAN, WEINSTEIN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered July 25, 1983, as amended June 25, 1986, convicting him of attempted murder in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial (Lodato, J.), without a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment, as amended, is affirmed.

The defendant contends that the trial court erred in summarily denying his motion to suppress identification testimony. We disagree. The record indicates that the defendant and the complainant were acquainted with one another and, therefore the issue of suggestiveness was not relevant (see, People v. Tas, 51 N.Y.2d 915, 916, 434 N.Y.S.2d 978, 415 N.E.2d 967; People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924). Under the circumstances extant at bar, the showup challenged by the defendant was in the nature of a confirmation rather than an identification (see, People v. Lang, 122 A.D.2d 226, 504 N.Y.S.2d 757; People v. Fleming, 109 A.D.2d 848, 486 N.Y.S.2d 773).

On this appeal, the defendant has raised some doubt as to the substantive sufficiency of his guilty plea. Specifically, he claims that the plea of guilty was not knowingly and voluntarily entered. Having failed to object to the adequacy of the plea allocution before the Supreme Court, Kings County, the defendant has not preserved his claims for appellate review (see, CPL 470.05[2]; People v. Hoke, 62 N.Y.2d 1022, 479 N.Y.S.2d 495, 468 N.E.2d 677; People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938). Furthermore, reversal in the interest of justice is not warranted because the record of the plea allocution establishes that it fully comported with the requirements of People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170. The detailed factual recitation delivered in the defendant's own words established the requisite elements of attempted murder in the second degree.

Nor do we find that the sentence of 8 to 24 years imprisonment which was imposed after a sentence of 10 to 20 years imprisonment was vacated violated the terms of the plea agreement. During the change of plea proceedings the court promised to impose a minimum sentence of 8 to 16 years and a maximum sentence of 10 to 20 years. However, the promised sentences could not legally be imposed because the defendant was neither a second felony offender when sentenced nor was the crime of attempted murder in the second degree an armed felony offense (CPL 1.20[41]; see, People v. Newton, 138 A.D.2d 415, 525 N.Y.S.2d 699). If a court is unable to impose the promised...