People v Blue

[*1] People v Blue 2010 NY Slip Op 51298(U) [28 Misc 3d 1212(A)] Decided on July 23, 2010 Yates County Ct Falvey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 23, 2010
Yates County Ct

The People of the State of New York,

against

Lee Blue, Defendant.



03-12



Jason Cook, Esq.,

Yates County District Attorney,

Counsel for the People

Lee Blue Defendant, pro se.

W. Patrick Falvey, J.

The defendant, moves to vacate and modify the sentence of this Court, pursuant to Article 440 of the Criminal Procedure Law (CPL). On October 1, 2003 the defendant plead guilty and was sentenced as a second felony offender for the crime of Attempted Assault in the Second Degree, a Class E felony in violation of Penal Law sections 110.00 and 120.05 (7).

Specifically, defendant moves pursuant to CPL 440.20(1) to set aside his sentence on the ground that the court erred in ordering that this Court's sentence be served consecutively to any undischarged term currently being served in federal prison, on the mistaken belief that it could not sentence the defendant to a concurrent sentence with the federal sentence. Defendant asserts that at the time of the June 15, 2002 offense under this indictment, he had not been convicted or sentenced on any other charge, and thus this Court's sentence violates the ex post facto clause of the United States Constitution. He is presently incarcerated in federal prison in New Jersey.

The People did not respond to the defendant's application.

The defendant's motion is denied.

The Court notes that the federal crime was committed November 1, 2000, and defendant was convicted thereof February 6, 2003, prior to imposition of sentence here on October 1, 2003. Subdivision four of Penal Law section 70.25 provides that when a person is subject to any undischarged term of imprisonment imposed at a previous time by a court of another jurisdiction, as is the case here, the court may direct its sentence to run consecutively or concurrently. [*2]

Here, the sentence imposed was the result of plea negotiations. Defendant fully participated in these negotiations, and received the benefit of his bargain. The colloquy at plea, which occurred the same day as sentencing, underscored this fact.

COURT: "Now, do you understand you could receive up to seven years in prison for the crime charged against you in this Indictment, and a maximum of three years and a minimum of one and a half years as a Second Felony Offender, and that would be consecutive to any undischarged term in the Federal Court: a mandatory surcharge of $210.00 and a waiver of appeal. Is there anything else that you understand the Court is committing to in exchange for your plea?"

DEFENDANT: "I understand it all, sir." Transcript, pg 6.

Defendant's motion is denied in all respects, on the ground that the moving papers do not allege any ground constituting a legal basis for the motion and because the moving papers do not contain any sworn allegations. CPL 440.30(4)(a) and (b).

The foregoing constitutes the Opinion, Decision and Judgment of this Court.

SO ORDERED.

Dated: July ______ , 2010

_________________________

W. Patrick Falvey

Yates County Judge