People v. Trammell

Jan 19, 1995
Versions:211 A.D.2d 527
622 N.Y.S.2d 439
1995 N.Y. App. Div. LEXIS 399

Order, Supreme Court, New York County (Herbert Altman, J.), entered on or about January 21, 1994, which denied defendant’s motion to set aside a sentence of 5 to 10 years imprisonment, to run consecutively to the undischarged portion of a previously imposed, unrelated sentence of 4 to 8 years imposed in connection with a judgment, same court and Justice, rendered January 20, 1993, convicting defendant, upon his plea of guilty, of robbery in the second degree, and sentencing him as a second violent felony offender, unanimously affirmed.

The plea and sentence minutes show that, contrary to defendant’s claim, the court never promised to merge the new 5 to 10 year sentence with the undischarged portion of the previously imposed 4 to 8 year sentence, and in fact specifically informed defendant, who was a second violent felony offender, that the sentences would run consecutively (see, Penal Law § 70.25 [2-a]; People v Acosta, 187 AD2d 329, lv denied 81 NY2d 881). No hearing on defendant’s motion to set aside the sentence was required since the plea and sentence minutes contradict defendant’s essential allegation of fact (CPL 440.30 *528[4] [d] [i]; see, People v Cunningham, 119 AD2d 938, lv denied 67 NY2d 1051). Concur—Rosenberger, J. P., Asch, Rubin and Nardelli, JJ.