People v Milanes

People v Milanes 2015 NY Slip Op 04206 Decided on May 14, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 14, 2015
Tom, J.P., Sweeny, Andrias, Moskowitz, Gische, JJ.
15101 6230/06

[*1] The People of the State of New York, Respondent,

v

Yaindahi Milanes, Defendant-Appellant.

Jorge Guttlein & Associates, New York (Jorge Guttlein of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.

Order, Supreme Court, New York County (Larry R. Stephen, J.), entered March 22, 2012, as amended October 7, 2014, which denied defendant's CPL 440.10/440.20 motion to vacate a judgment of conviction rendered January 4, 2007 and set aside the sentence, unanimously affirmed.

Defendant's claim under Padilla v Kentucky (559 US 356 [2010]) is unavailing, because that decision has no retroactive application to this case (People v Baret, 23 NY3d 777 [2014]).

There is no basis for setting aside defendant's sentence. While the plea minutes establish that defendant pleaded guilty to attempted third-degree criminal possession of a controlled substance, court records mistakenly indicated that the plea was to fourth-degree possession. Defendant received his promised sentence of probation, which was lawful under either of these class C felonies, and the motion court granted the only remedy necessary, which was a correction of the error in the records.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 14, 2015

CLERK