Opinion
5501
December 4, 2001.
Judgment, Supreme Court, New York County (John Bradley, J.), rendered October 26, 1999, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously modified, on the law, to the extent of vacating the persistent felony offender adjudication and sentence and remanding the matter for further proceedings as to resentencing, and otherwise affirmed.
Beth Beller, for the people.
Jonathan M. Kirshbaum, for defendant-appellant.
Sullivan, P.J., Williams, Ellerin, Lerner, Saxe, JJ.
After a thorough hearing, the court properly denied defendant's motion to withdraw his plea. There is no basis upon which to disturb the court's determinations concerning credibility. Defendant's unsubstantiated claims of mental incapacity at the time of his plea, based on his brother's death and his alleged medication, were belied by the transcript of defendant's lucid allocution and the court's own recollection (see,People v. Clarke, 251 A.D.2d 7; People v. Bermudez, 228 A.D.2d 237, lv denied 89 N.Y.2d 919). Defendant's remaining claims were properly discredited by the court.
As the People commendably concede, the matter must be remanded for resentencing since defendant was only permitted an opportunity to controvert one of his two prior violent felony offenses.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.