Opinion
May 15, 1967
Appeal from a judgment of conviction of the County Court of Broome County which resentenced the defendant to serve 5 to 10 years upon a previous plea of guilty to rape in the first degree, resulting in a prior sentence of one day to life and, more particularly, from the denial of defendant's motions on the resentencing proceedings for permission to withdraw his previous plea of guilty and to substitute a plea of not guilty; for permission to inspect the Grand Jury minutes; for an adequate opportunity for defendant's counsel to investigate and prepare his case; and for an opportunity to controvert the psychiatric findings. On November 12, 1963, the defendant, Peter James Laskaris, pleaded guilty to the crimes of kidnapping in the first degree; assault in the first degree; rape in the first degree; and robbery in the first degree. He was sentenced on December 3, 1963 to serve not less than 22 years nor more than life for kidnapping; 2 to 4 years for assault; one day to life for rape; and 10 to 20 years for robbery, with the sentences running concurrently. On November 8, 1965, the Supreme Court, Cayuga County, vacated and set aside the sentence imposed upon the defendant's conviction of rape first degree, and directed his resentence in the Broome County Court upon receipt of a psychiatric examination in compliance with section 2189-a of the Penal Law. Upon the defendant's return to Broome County Court, he was transferred to the Binghamton State Hospital where the required psychiatric examination was made. Thereafter, on the proceedings for resentence, the defendant, by several motions, sought to withdraw his plea of guilty; to inspect the Grand Jury minutes; to have a court assigned psychiatrist examine on behalf of the defendant; to have an independent psychiatric examination, and for an opportunity to controvert the findings in the psychiatric report. These motions were denied, and the defendant was resentenced on December 24, 1965 to a term of 5 to 10 years to run concurrently with the sentences imposed on December 3, 1963. The defendant now contends that the court, in denying the motion to withdraw his plea of guilty, acted without recognizing its powers under section 337 of the Code of Criminal Procedure. In support of this contention, the defendant quotes the colloquy between the defendant and court concerning the availability later to the defendant of the record of the proceedings wherein the court said: "I assigned him for the limited purposes of representing you on the motion for resentencing by this court. This is what you are here for, for the limited purpose of being resentenced in accordance with the order of Mr. Justice MACKEN." The fallacy of this argument is, however, that each time the defendant moved to withdraw his plea of guilty, the court heard the argument of both sides before making its determination. Thus, the court, in effect, returned the defendant to the status he possessed prior to his original sentence and fully granted the defendant his right to apply to withdraw his plea. The case of People v. Schoonmaker ( 15 A.D.2d 862), where the defendant was denied the right to make the application, is not in point, since in the instant case the defendant was permitted to make his application and advance his reasons why the application should be granted. The defendant argues that the court abused its discretion in denying the motions to withdraw his plea. Examining the reasons advanced on the motions for withdrawal, we find no claim of innocence, and no claims of fraud, coercion or mistake, nor do we find advanced any good reason why the motions should have been granted. We conclude there was no abuse of discretion in denying the motions. The defendant's contention that he was entitled to inspect the Grand Jury minutes prior to resentencing is without merit. The purpose of the motion to inspect was to determine whether the bill of particulars set forth the crime for which the Grand Jury indicted the defendant. If there had been any question about the nature of the charge or the regularity of the bill of particulars, an inspection of the Grand Jury minutes would have been sought prior to the plea of guilty and conviction. The defendant, having waived his right to apply for an inspection of the minutes prior to conviction, a motion to inspect the minutes may not now be granted. ( People v. Williams, 6 N.Y.2d 193; People v. Drake, 25 A.D.2d 474; People v. De Groat, 13 A.D.2d 849.) The defendant further contends that the denial of an opportunity to controvert the psychiatric report made pursuant to section 2189-a of the Penal Law is a denial of due process and error. The Penal Law affords no right to a defendant to controvert such reports. A distinction must be drawn between the due process rights of a defendant at the time of trial, and at the time of imposing sentence. The purpose of section 2189-a is to provide pertinent information to guide judges in intelligently imposing sentences. Like any presentence report, its disclosure is within the discretion of the court. Since the report does not affect the determination of defendant's guilt or innocence but only the exercise of judicial discretion, due process does not require that the defendant be advised of its contents or afforded an opportunity to controvert it. ( People v. Peace, 18 N.Y.2d 230.) The recent case of Specht v. Patterson ( 386 U.S. 605), is not controlling here, since the Colorado and Pennsylvania statutes there considered differ substantially from section 2010 of the Penal Law. In any event, the defendant was not aggrieved by the denial of a hearing upon the psychiatric report, since the court exercised the discretion afforded by section 2010 of the Penal Law in favor of a sentence to a term of from 5 to 10 years, rather than the indeterminate sentence of from one day to life originally imposed, which sentence running concurrently with the sentence for kidnapping of not less than 22 years nor more than life will necessarily terminate before the kidnapping sentence, and the defendant, therefore, is not prejudiced. We have examined and find no merit in the defendant's other contentions. Judgment affirmed. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.