People v. Tabares

Decision Date26 June 2008
Docket Number4013.,4014.
Citation2008 NY Slip Op 05815,52 A.D.3d 437,860 N.Y.S.2d 114
PartiesTHE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RAFAEL TABARES, Appellant.
CourtNew York Supreme Court — Appellate Division

FitzGerald, J.), rendered January 13, 2006, convicting defendant, upon his pleas of guilty, of burglary in the third degree and robbery in the third degree, and sentencing him, as a second felony offender, to consecutive terms of 3½ to 7 years, unanimously affirmed.

Since defendant's plea withdrawal motion was based on a completely different claim from the one he raises on appeal, his present claim that his plea was coerced by the court's alleged misrepresentation as to his sentencing exposure had he gone to trial is unpreserved (see People v Cerveira, 6 AD3d 294 [2004], lv denied 3 NY3d 704 [2004]), and we decline to review it in the interest of justice. As an alternative holding, we find the claim without merit. The court's statement that defendant would have faced a mandatory minimum sentence of 16 years to life as a persistent violent felony offender, had he rejected the plea bargain and been convicted after trial of second-degree burglary, was entirely correct. Although, at the time of the plea, the court reduced the second-degree burglary charge to third-degree burglary under CPL 210.20 (1-a), it is clear from the record that the reduction was for purposes of disposition.

Defendant made a valid waiver of his right to appeal (see People v Ramos, 7 NY3d 737 [2006]), which forecloses his excessive sentence claim. As an alternative holding, we perceive no basis for reducing the sentence.

Concur — Saxe, J.P., Nardelli, Moskowitz, Acosta and DeGrasse, JJ.

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5 cases
  • People v. Elliot
    • United States
    • New York Supreme Court — Appellate Division
    • 31 Marzo 2016
    ...the ground he raises on appeal (see People v. Ali, 96 N.Y.2d 840, 729 N.Y.S.2d 434, 754 N.E.2d 193 [2001] ; People v. Tabares, 52 A.D.3d 437, 860 N.Y.S.2d 114 [1st Dept.2008], lv. denied 11 N.Y.3d 835, 868 N.Y.S.2d 610, 897 N.E.2d 1094 [2008] ), and we decline to review defendant's contenti......
  • People v. Blanding
    • United States
    • New York Supreme Court — Appellate Division
    • 31 Mayo 2016
    ...claim that his plea was coerced by the court's statements during the plea proceeding is unpreserved (see People v. Tabares, 52 A.D.3d 437, 860 N.Y.S.2d 114 [1st Dept.2008], lv. denied 11 N.Y.3d 835, 868 N.Y.S.2d 610, 897 N.E.2d 1094 [2008] ), and we decline to review it in the interest of j......
  • People v. McFadden
    • United States
    • New York Supreme Court — Appellate Division
    • 20 Abril 2017
    ...People were free to obtain an indictment charging a crime carrying a potential sentence of 25 years (see e.g. People v. Tabares, 52 A.D.3d 437, 860 N.Y.S.2d 114 [1st Dept.2008], lv. denied 11 N.Y.3d 835, 868 N.Y.S.2d 610, 897 N.E.2d 1094 [2008] ).ACOSTA, J.P., MAZZARELLI, MANZANET–DANIELS, ......
  • People v. Tabares
    • United States
    • New York Court of Appeals Court of Appeals
    • 23 Octubre 2008
    ...1094 11 N.Y.3d 835 PEOPLE v. TABARES. Court of Appeals of the State of New York. October 23, 2008. Appeal from 1st Dept.: 52 A.D.3d 437, 860 N.Y.S.2d 114 (NY). Application for leave to appeal Denied. (Read, ...
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