Summary
In People v. Cosme, 203 A.D.2d 375, 610 N.Y.S.2d 293 (2d Dept.1994), the Court reduced a sentence to 15 years to life because of the disparity between plea offer of 8 years to life and imposed sentenced of 25 years to life.
Summary of this case from People v. MartinezOpinion
April 11, 1994
Appeal from the Supreme Court, Queens County (Cohen, J.).
Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by reducing the sentence to an indeterminate term of 15 years to life imprisonment; as so modified, the judgment is affirmed.
The defendant's contention that the trial court erred in permitting a police officer to testify that he arrested the defendant after a conversation with eyewitnesses to the robbery is not preserved for appellate review (see, CPL 470.05; People v Nuccie, 57 N.Y.2d 818, 819; People v Anthony, 179 A.D.2d 765). In any event, any such error was harmless in view of the overwhelming evidence of the defendant's guilt, including the strong identification testimony of three eyewitnesses, each of whom had an ample opportunity to view the defendant within close proximity and in good lighting at the time of the robbery, and one of whom had seen the defendant prior to the incident (see, People v Mobley, 56 N.Y.2d 584, 585; People v Gordillo, 191 A.D.2d 455; People v Stanley, 185 A.D.2d 827; People v Bryan, 179 A.D.2d 667; People v Anthony, 179 A.D.2d 765, supra).
The defendant also contends that he was denied the effective assistance of counsel. After a review of the record in its entirety, we are satisfied that the defendant received the effective assistance of counsel (see, People v Satterfield, 66 N.Y.2d 796; People v Cardia, 133 A.D.2d 775).
Prior to trial, the defendant was offered, as part of a plea bargain, a sentence of an indeterminate term of eight years to life imprisonment, or, if the People consented, six years to life imprisonment, in return for his plea of guilty on this case and two other pending indictments. At sentencing, the defendant was offered an indeterminate term of 15 years to life imprisonment to cover this case and the two other pending indictments provided that he agreed to plead guilty on those pending indictments. When the defendant refused the offer, he was sentenced as a persistent violent felony offender to an indeterminate term of 25 years to life imprisonment.
In view of the disparity between the sentence which the court promised to dispose of all three cases, and the sentence which the court imposed for the case at bar alone, it appears that the defendant was impermissibly penalized for asserting his right to trial on his pending indictments (see, People v Peterson, 126 A.D.2d 680; People v Patterson, 106 A.D.2d 520; People v Brown, 70 A.D.2d 505).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Mangano, P.J., Pizzuto, Friedmann and Goldstein, JJ., concur.