People v. Gilchrist, 251 A.D.2d 1030 (N.Y. App. Div. 4th Dep't 1998). · Go Syfert
People v. Gilchrist, 251 A.D.2d 1030 (N.Y. App. Div. 4th Dep't 1998). Cases Citing This Book View Copy Cite
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At page 1031 Reviewing plea based on alleged misrepresentations by counsel1 citing case“Upon our review of the record, we conclude that defendant’s plea was knowingly, intelligently and voluntarily entered but that the colloquy concerning the waiver of the right to appeal is insufficient to establish a knowing and voluntary waiver (see generally, People v Callahan, 80 NY2d 273, 280).”the opinion's own words at *1031
  • People v. Graham, 77 A.D.3d 1439 (N.Y. App. Div. 4th Dep't 2010).published
    Indeed, there is no support in the record for the contention of defendant that defense counsel misinformed him about a promised sentence cap and, to the extent that he relies upon alleged misrepresentations by defense counsel that are outs…
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The People of the State of New York
v.
George Gilchrist, Also Known as Ian Raymond
Appellate Division of the Supreme Court of the State of New York.
Jun 10, 1998.
Published opinion
251 A.D.2d 1030
1998 N.Y. App. Div. LEXIS 7073
Cited by 2 opinions  |  Published

—Judgment unanimously affirmed. Memorandum: County Court did not abuse its discretion in denying the motion of defendant to withdraw his guilty plea to criminal possession of a weapon in the third degree (Penal Law § 265.02[*1031] [4]), a violent felony. The record does not support the contention of defendant that he entered the plea based on misinformation that the promised sentence of a four-year definite term of incarceration would be concurrent with a sentence he was serving on a prior conviction.

Defendant further contends that he was denied effective assistance of counsel because defense counsel took a position adverse to him and became a witness against him when defendant moved to withdraw his guilty plea and because defense counsel did not accurately inform him that, by pleading guilty to a violent felony, the sentence imposed would run consecutive to a sentence he was serving on a prior conviction. The record does not support either contention (cf., People v Burton, 251 AD2d 1020 [decided herewith]). To the extent that the contention that defense counsel misinformed defendant with respect to his sentence is based on matters outside the record, that contention can only be considered in a motion for postjudgment relief (see, CPL 440.10 [1] [h]; People v Hodge, 226 AD2d 1124, lv denied 88 NY2d 986; People v Belair, 226 AD2d 1105, 1106).

Upon our review of the record, we conclude that defendant’s plea was knowingly, intelligently and voluntarily entered but that the colloquy concerning the waiver of the right to appeal is insufficient to establish a knowing and voluntary waiver (see generally, People v Callahan, 80 NY2d 273, 280). Thus, although review of defendant’s contention concerning the sentence is not thereby foreclosed, we nonetheless conclude that the sentence is not unduly harsh or severe. (Appeal from Judgment of Onondaga County Court, Burke, J. — Criminal Possession Weapon, 3rd Degree.) Present — Pine, J. P., Lawton, Wisner, Callahan and Fallon, JJ.