People v Adams

2007 NY Slip Op 08571 [45 AD3d 1346]

November 9, 2007

Appellate Division, Fourth Department

As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v GilbertAdams, Appellant.

—[*1]The Legal Aid Bureau of Buffalo, Inc., Buffalo (Paul B. Curtin of counsel), fordefendant-appellant.

Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.

Appeal from a judgment of the Erie County Court (Sharon M. LoVallo, A.J.), renderedNovember 10, 2005. The judgment convicted defendant, upon his plea of guilty, of burglary inthe third degree and criminal contempt in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by vacating the sentence and as modified the judgment isaffirmed, and the matter is remitted to Erie County Court for resentencing in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of burglary in the third degree (Penal Law § 140.20) and criminal contempt in thefirst degree (§ 215.51 [b] [v]). Contrary to the contention of defendant, County Court didnot abuse its discretion in denying his motion to withdraw his plea (see People vLeonard, 306 AD2d 940 [2003]; see also People v Selikoff, 35 NY2d 227, 241[1974], cert denied 419 US 1122 [1975]). The plea colloquy establishes that defendant'splea was knowingly, intelligently, and voluntarily entered (see People v McCawley, 23 AD3d 1157 [2005], lv denied 6NY3d 778 [2006]). Defendant's assertions of innocence and duress are unsubstantiated andconclusory (see generally People v Lowrance, 41 NY2d 303, 304-305 [1977]; Peoplev Dixon, 29 NY2d 55, 57 [1971]; McCawley, 23 AD3d 1157 [2005]).

We further conclude, however, that the sentence imposed is illegal and therefore cannotstand, despite defendant's failure to raise the issue in the trial court or on appeal (see People v Davis, 37 AD3d1179, 1180 [2007], lv denied 8 NY3d 983 [2007]; People v Price, 140 AD2d927 [1988]). First, although the certificate of conviction indicates that defendant was sentencedas a second felony offender, it appears from the sentencing minutes that defendant was in factsentenced as a first felony offender, and thus the sentence is illegal on that ground. The court wasrequired to sentence defendant as a second felony offender based on the evidence before it thatdefendant had been convicted of a prior felony within the 10 years preceding his commission ofthe present felonies (see Penal Law § 70.06 [1] [b] [iv]; People vScarbrough, 66 NY2d 673 [1985], revg on dissenting op of Boomer, J., 105 AD2d1107, 1107-1109 [1984]; People v Martinez, 213 AD2d 1072 [1995]). Second, evenassuming, arguendo, that the court properly sentenced defendant as a second felony offender, weconclude that the sentence is illegal because it was not in compliance with Penal Law §70.06 (4) (b). The court sentenced defendant to terms of 21/3 to 7 years on theburglary [*2]count and 11/3 to 4 years on thecriminal contempt count but, pursuant to section 70.06 (4) (b), the minimum period ofimprisonment for an indeterminate sentence must be one half of the maximum imposed (seegenerally People v Chappelle, 282 AD2d 834 [2001]). Finally, we conclude that the courterred in increasing defendant's sentence from concurrent to consecutive terms after he refused tosign the no-contact order of protection. That "increase cannot be justified under sentencingprocedures nor supported under the guise of punishment for contempt of court" (People vCulpepper, 33 NY2d 837, 838 [1973], cert denied 417 US 916 [1974]). We thereforemodify the judgment by vacating the sentence, and we remit the matter to County Court forresentencing before a different judge in accordance with our decision. Present—Scudder,P.J., Hurlbutt, Fahey, Green and Pine, JJ.