Summary
In People v Barnes (160 A.D.2d 342 [1st Dept 1990]), the Court upheld the re-sentencing of defendant as a predicate felon after defendant had first been sentenced to probation but later discovered that defendant was a predicate felon.
Summary of this case from People v. BenardOpinion
April 12, 1990
Appeal from the Supreme Court, New York County, James J. Leff, J.
Defendant, under indictment No. 2661/87, was originally sentenced, on July 6, 1987, to a five-year term of probation. Prior to sentencing on indictment No. 5949/87, the People became aware that defendant should have been sentenced as a second felony offender under the first indictment. Fingerprint records, under the name "Craig Cacchio" and Clifford Barnes, established that defendant had previously been convicted of a felony.
Under these circumstances, the sentencing court properly granted the People's motion, pursuant to CPL 440.40 (1), to set aside defendant's sentence as invalid as a matter of law, and resentenced defendant as a second felony offender. We cannot condone defendant's deceit, evidenced by the use of aliases to avoid discovery of prior offenses, or the fraud perpetrated by him upon the court, in failing to disclose his true status during plea negotiations and sentencing.
We do not reward such culpable conduct or permit defendant to benefit from intentionally misleading the People and the court. Defendant's reliance upon People v. Saez ( 125 Misc.2d 125) is misplaced, since Saez no longer represents a correct statement of the law, in view of the ruling of the Court of Appeals in People v. Scarbrough ( 66 N.Y.2d 673, revg on dissenting opn at 105 A.D.2d 1107, 1107-1109).
Defendant's remaining arguments have been considered and deemed meritless, since no uniform catechism is required of defendant entering a guilty plea (People v. Nixon, 21 N.Y.2d 338, 353) and defendant has not demonstrated that the sentencing court abused its discretion in imposing the terms of imprisonment.
Concur — Murphy, P.J., Kupferman, Ross, Asch and Rubin, JJ.