PEOPLE v. RODRIGUEZ (2000)

Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered August 25, 1998, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 5 years, unanimously modified, on the law, the facts and in the interest of justice, to the extent of reducing the sentence imposed to a term of 3 years, and otherwise affirmed.

 The court properly exercised its discretion in denying, after sufficient inquiry under the circumstances, defendant's motion to withdraw his plea of guilty.   The record establishes that the plea was voluntarily, knowingly and intelligently entered (see, People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646), and defendant's assertion at sentencing that he had merely been bringing the weapon to its unspecified “rightful owner”, aside from being belated and conclusory, did not assert a valid defense of temporary lawful possession (see, People v. Banks, 76 N.Y.2d 799, 559 N.Y.S.2d 959, 559 N.E.2d 653).

 However, both the court and defendant's trial counsel appear to have been under the misapprehension that a term of 5 years was the mandatory minimum sentence when the applicable mandatory minimum was, in fact, 3 years.   Since the record demonstrates that the court, but for its error, would have sentenced defendant to the minimum term of 3 years, we modify accordingly.

MEMORANDUM DECISION.