People v. Rice

Jun 24, 1997
Versions:240 A.D.2d 322
659 N.Y.S.2d 749
1997 N.Y. App. Div. LEXIS 6760

Judgment, Supreme Court, Bronx County (Robert Cohen, J.), rendered January 22, 1993, convicting defendant, upon his plea of guilty, of robbery in the first degree (4 counts) and attempted robbery in the first degree, and sentencing him, as a second violent felony offender, to concurrent terms of 8 to 16 years on each robbery conviction and 71/2 to 15 years on the attempted robbery conviction, unanimously affirmed. Judgment, Supreme Court, New York County (Richard Andrias, J.), rendered February 16, 1993, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a concurrent term of 8 to 16 years, unanimously modified, on the law, to vacate the sentence and to remand for resentencing upon consideration of an updated presentencing report, and otherwise affirmed.

Upon the existing record, we find no reasonable possibility that defendant’s New York County guilty plea was induced by any misleading information he may have received concerning the post-plea appealability of the statutory aspect of his speedy trial claim (see, People v Mackenzie, 233 AD2d 101, lv denied 89 NY2d 944; People v Rivers, 228 AD2d 291, lv denied 88 NY2d 993). In any event, upon a review of the record, we find that defendant’s speedy trial claims, both statutory and constitutional, are entirely without merit.

Although defendant waived preparation of a New York County presentence report and agreed to rely on the Bronx County report that had been prepared within the preceding 12 months, the sentencing court did not have the Bronx report before it (see, People v Gordon, 155 AD2d 225). Thus, defendant’s New York County sentence must be vacated and the case remanded for resentencing.

We perceive no abuse of sentencing discretion with respect to the Bronx County conviction. We have considered defen*323dant’s remaining arguments and find them to be without merit. Concur—Sullivan, J. P., Milonas, Williams and Tom, JJ.