2017 NY Slip Op 50896(U)

People of the State of New York, against Philip Fahey, Defendant.

Supreme Court, Kings County.

Attorney(s) appearing for the Case

Philip Fahey, Defendant Pro Se (Altona, New York) for The People.

Eric Gonzalez , Acting District Attorney, Kings County, Brooklyn, New York, Joseph Mancino , of counsel.


The defendant, pro se, moves the court to set aside the sentence imposed under the captioned indictment, pursuant to CPL § 440.20, on the ground that it was incorrect, illegal, or not authorized for the offense for which he was convicted. Alternatively, he seeks a hearing on the matter.

The motion is denied in its entirety on the merits.

In making its determination the court has considered the moving papers and the People's affirmation and memorandum in opposition to the defendant's motion, and has also examined the plea and sentencing minutes.

On June 24, 2015, the defendant took a plea to cover three indictments. On the captioned matter, indictment number 1220-2013, the defendant pleaded guilty to Grand Larceny in the Third Degree (under count 7, charging him with violating Penal Law § 155.35[1]1), with a promised sentence of 3-1/2 to 7 years' imprisonment. On indictment number 7330-2014, he also pleaded guilty to Grand Larceny in the Third Degree for a promise of 2-1/2 to 5 years' incarceration; and on indictment number 7394-2014, he entered a plea of guilty to Attempted Assault in the Second Degree upon a sentence promise of 2 to 4 years' imprisonment. All three sentences were to run concurrently. (See Plea Minutes, June 24, 2015, pp. 2-4.)

The defendant was sentenced on all three matters on July 8, 2015, pursuant to the terms of these pleas (see Sentencing Minutes, p. 7). At sentencing the defendant was also adjudicated a second felony offender (see id. at 5-6). Notably, at no time did the defense ever seek to withdraw the defendant's pleas of guilty, and, in fact, prior to sentencing, the defendant expressed his remorse for his wrongs (see id. at 7).

Because, during the course of the plea allocution the court had indicated that the stolen property under indictment number 1220-2013 was "worth more than a thousand dollars," now, nearly two years later, the defendant is maintaining that he pled guilty to Grand Larceny in the Fourth Degree (an "E" felony), which crime carries a maximum sentence of 2 to 4 years. Thus, he asserts that it was error to sentence him to 3-1/2 to 7 years' imprisonment under indictment number 1220-2013, and that he should be re-sentenced here in accordance with the law.

The motion to set aside the sentence is denied as the sentence imposed upon the defendant was an authorized, legal and valid sentence for a second felony offender convicted of the "D" felony of Grand Larceny in the Third Degree under Penal Law § 155.35 (1). The plea and sentencing minutes also belie any possible claim that the defendant expressly pled guilty to Grand Larceny in the Fourth Degree. No hearing is necessary.

The court finds that the People are correct in their observation that what the defendant really means to attack is the factual sufficiency of this plea, although he fails to do so in the proper manner, and, regardless, such an application is deniable on both the merits and procedural grounds.

As evidenced by the colloquy between defense counsel and the Assistant District Attorney, the essence of the plea agreement was that the defendant would serve a net sentence of 3-1/2 to 7 years' imprisonment. The defendant received the benefit of his bargain, for a three-indictment plea package with concurrent sentences. This is further borne out by the fact that the defendant never moved to withdraw his plea and even upon this motion has not sought to vacate his conviction. Rather, he is merely now seizing upon a mis-spoken word during his plea in the hope of garnering a reduction in his sentence well below the original plea agreement. However, the cited reference to the value of the stolen property provides no basis for setting aside a valid and lawful sentence.

While the present motion indirectly attacks the factual sufficiency of the plea allocution, the defendant has not ever expressly brought such a challenge, which can only be made by a motion to withdraw the plea under CPL 220.60 (3) or by a motion to vacate the judgment of conviction under CPL 440.10 (see People v Lopez, 71 N.Y.2d 662, 665 [1988]), or by a direct appeal where the plea recitation negates an essential element of the crime (see id. at 666). In any event, such challenges would fail.

Having overseen the plea proceedings and having also reviewed the plea minutes here, the court is satisfied that Mr. Fahey's plea of guilty was knowingly, voluntarily, and intelligently entered and that the defendant fully understood the implications and consequences of his plea (see, People v Harris, 61 N.Y.2d 9, 16-19 [1998]). There is nothing in the plea minutes which calls into question the voluntariness of the defendant's plea (cf., People v Lopez, 71 NY2d at 666-668]), nor does the instant motion raise any issue as to the voluntariness of the defendant's plea.

The failure to elicit from the defendant an acknowledgment that the property he stole on February 5, 2013 had a value of over three thousand dollars is not fatal to the validity of his guilty plea under Ind. No. 1220-13.

Firstly, the defendant's concurrence that the property in issue had a value of over one thousand dollars did not constitute a negation of an essential element of the crime, nor did it cast doubt on the defendant's guilt or on the voluntariness of his plea to guilty of the crime of Grand Larceny in the Third Degree (cf., Lopez, at 666-67; see also, People v Seeber, 4 N.Y.3d 780, 781-782 [2005]).

Furthermore, as the Court of Appeals has reaffirmed, "an allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime. Nor is `[t]he court's duty to inquire further . . . triggered merely by the failure of a pleading defendant, whether or not represented by counsel, to recite every element of the crime pleaded to' [citation omitted]" (People v Goldstein, 12 N.Y.3d 295, 301 [2009]). Continuing, the Goldstein court observed, "we have refused to disturb pleas by canny defendants even when there has been absolutely no elicitation of the underlying facts of the crime [citation omitted] [rather, i]t is enough that the allocution shows that the defendant understood the charges and made an intelligent decision to enter a plea [citation omitted]" (id.).

These principles and observations all apply to the matter at bar, and upon consideration of same it must be concluded that there appears no basis for disturbing the defendant's plea, even if he had properly moved for this relief.

This court would also be procedurally barred from reviewing the factual sufficiency of the defendant's plea allocution upon a CPL 440.10 motion to vacate. CPL 440.10 (2) (c) mandates that a court deny a motion to vacate a judgment if all the necessary facts relating to the legal issue appear "on the record" and therefore could have been raised on a direct appeal (see People v Cooks, 67 N.Y.2d 100 [1986]). As the Cooks court held, "[i]f the plea proceeding record is sufficient to permit review of the issue on direct appeal, the sufficiency of the allocution cannot be collaterally reviewed in a CPL 440.10 proceeding" (id. at 101). Such is the case here.

In light of the foregoing, the court finds no legal basis for vacating the sentence herein or for otherwise disturbing the conviction, and further finds that no hearing is required in order to resolve this motion (see, CPL 440.30[4]). Accordingly, the motion is, respectfully, denied in all respects.

This constitutes the decision and order of the court.


1. The property stolen by the defendant on February 5, 2013 was identified as work tools, which the People allege had a value of approximately $7,000.


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