Opinion
KA 01-02107
February 7, 2003.
Appeal from a judgment of Erie County Court (McCarthy, J.), entered July 23, 1991, convicting defendant upon his plea of guilty of manslaughter in the first degree.
JAMES A. MULLENHOFF, WEST SENECA, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (STEVEN MEYER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
We previously granted defendant's motion for a writ of error coram nobis (People v. Hooper, 289 A.D.2d 1097), vacating our prior order in People v. Hooper ( 245 A.D.2d 1021, lv denied 91 N.Y.2d 942) in which we affirmed a judgment convicting defendant upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20). The sole contention of defendant on this appeal de novo is that his plea of guilty to manslaughter must be vacated pursuant to People v. Fuggazzatto ( 62 N.Y.2d 862) and People v. Clark ( 45 N.Y.2d 432, 440, rearg denied 45 N.Y.2d 839) because it was conditioned on the sentence running concurrently with the sentence imposed on his conviction of attempted criminal possession of a weapon in the third degree (§§ 110.00, 265.02 [2]) that we reversed by our order in People v. Hooper ( 245 A.D.2d 1020). We reject that contention. The record establishes that defendant pleaded guilty to one count of attempted criminal possession in the third degree on each of two indictments and on November 28, 1990 was sentenced as promised to two indeterminate terms of incarceration, each of which had a maximum of 4 years. The second sentence was to run consecutively to the first. On June 10, 1991, as his trial on the instant indictment charging him with murder in the second degree (§ 125.25 [1]) was about to begin, defendant pleaded guilty to manslaughter in the first degree pursuant to an agreement that he would be sentenced to a term of incarceration of 7 to 21 years, to run concurrently with the two prior sentences. All three judgments of conviction were appealed to this Court. On December 31, 1997, we reversed one of the judgments of conviction of attempted criminal possession in the third degree (Hooper, 245 A.D.2d 1020) and the indictment underlying that conviction was thereafter dismissed because the sentence had been fully served. We affirmed the other two judgments of conviction (Hooper, 245 A.D.2d 1021; People v. Hooper, 245 A.D.2d 1152) but, as previously noted, we granted defendant's motion for a writ of error coram nobis with respect to one of those judgments (Hooper, 289 A.D.2d 1097).
At sentencing on the two prior indictments, defendant told County Court that he had already been incarcerated for 14 months. The sentences imposed on those indictments had a combined maximum of eight years and, with jail time credit, were both fully served before one of the judgments of conviction was reversed on December 31, 1997. Thus, the plea commitment was fulfilled (cf. People v. Boyle, 164 A.D.2d 938, 939-940), and "[w]e can find no justification for enabling defendant to profit from the reversal of one judgment of conviction by reversing a subsequent judgment based on unrelated charges" (People v. Walker, 224 A.D.2d 781, 782, lv denied 88 N.Y.2d 970).