People v. West
| Decision Date | 19 May 1988 |
| Citation | 140 A.D.2d 852,529 N.Y.S.2d 41 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Henry A. WEST, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Guido A. Loyola, Schenectady, for appellant.
John B. Poersch, Dist. Atty. (Michael T. McGarry, of counsel), Schenectady, for respondent.
Before CASEY, J.P., and MIKOLL, LEVINE, HARVEY and MERCURE, JJ.
Appeal from a judgment of the County Court of Schenectady County (Harrigan, J.), rendered May 27, 1986, convicting defendant upon his plea of guilty of the crimes of attempted rape in the first degree and operating a motor vehicle while under the influence of alcohol, as a felony.
Defendant accepted a plea bargain which permitted him to plead guilty to attempted rape in the first degree and a felony count of driving while intoxicated in satisfaction of two indictments then pending against him. As part of the agreement, defendant received a sentencing commitment of 5 to 10 years' imprisonment for the attempted rape and 1 1/2 to 3 years' imprisonment for driving while intoxicated, both sentences to run concurrently.
When defendant originally appeared for sentencing, the prosecution inadvertently failed to file the statement indicating that defendant was to be sentenced as a second felony offender. In light of this omission, the parties appeared for resentencing four days later and the procedural requisites of CPL 400.21 were complied with. In both instances, County Court imposed the sentences which had been promised as part of the plea bargain. This appeal by defendant ensued.
On appeal defendant contends that the resentencing procedure was improper. We disagree. It was within County Court's inherent power to correct this error by resentencing defendant ( see, People v. Wright, 56 N.Y.2d 613, 614, 450 N.Y.S.2d 473, 435 N.E.2d 1088). Moreover, the resentencing transcript clearly indicates that defendant was advised of his right to controvert the statement and declined to do so. The fact that defendant was not specifically advised of his right to contest the constitutional basis of his prior felony conviction does not constitute reversible error or indicate that he was denied the effective assistance of counsel ( see, People v. Demand, 115 A.D.2d 139, 495 N.Y.S.2d 523). In our view, upon resentencing, there was substantial compliance with CPL 400.21 and, consequently, defendant was properly sentenced as a predicate felon ( see, People v. Vermette, ...
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People v. West
...upon his guilty plea of the reduced charge of attempted rape in the first degree in satisfaction of a four-count indictment ( 140 A.D.2d 852, 529 N.Y.S.2d 41 [1988] ). While on parole, the Sex Offender Registration Act (see Correction Law art 6–C) was enacted and, in 1998, he was classified......
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People v. West
...1986, defendant was convicted upon his guilty plea of, as is relevant here, attempted rape in the first degree ( People v. West, 140 A.D.2d 852, 529 N.Y.S.2d 41 [1988] ). While on parole, the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]) was enacted and, in 1......
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People v. Wilkins
...771, 772, 503 N.Y.S.2d 183 [1986] [citations omitted]; see People v. Wallace, 188 A.D.2d 499, 500, 591 N.Y.S.2d 60 [1992];People v. West, 140 A.D.2d 852, 852, 529 N.Y.S.2d 41 [1988] ). Here, the record reveals that defendant was provided with the prior felony information before sentencing a......
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People v. West
...status. In 1986, defendant was convicted upon his guilty plea of, as is relevant here, attempted rape in the first degree (People v West, 140 A.D.2d 852 [1988]). While on parole, the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]) was enacted and, in 1998, he w......