People v. Madeo

f Two days later, after pictures of him taken by the bank’s cameras had appeared in the newspapers, defendant turned himself in. He was ultimately charged in a four-count indictment with two counts of first degree robbery, and one count each of second degree robbery and second degree grand larceny. After nine months of plea bargaining negotiations, defendant pleaded guilty to the first count of the indictment, robbery in the first degree, in violation of subdivision 3 of section 160.15 of the Penal Law, in exchange for a promise that he would not receive a sentence in excess of six years. The bargained for maximum sentence was subsequently imposed, f Defendant’s principal contention on this appeal is that the trial court erred in accepting his guilty plea on the ground that he was not, in fact, guilty of first degree robbery as defined by subdivision 3 of section 160.15 of the Penal Law. He argues that the trial court should have apprehended that he did not use or threaten “the immediate use of a dangerous instrument” in perpetrating the theft and that it should, accordingly, have either rejected his plea or informed him that his admissions might not constitute the crime charged and inquired whether he still wanted to plead guilty (citing People v Serrano, 15 NY2d 304 ). f This contention is meritless. A guilty plea is properly accepted unless the trial court has somehow been alerted to the fact that the plea is inappropriate, e.g., by evidence of a dispute of the facts, by evidence of an incorrect charge on the face of the indictment, or by evidence of inadequate representation of counsel (People v Francis, 38 NY2d 150 , 153-154). None of these indicia of the alleged inappropriateness of the plea was presented here. The transcript of defendant’s allocution at the plea hearing reveals that he fully satisfied the requirements for guilt as defined by subdivision 3 of section 160.15 of the Penal Law. He related to the trial court that he went up to the teller on the date in question and handed her a withdrawal slip with the notation that he had a gun and wanted her to hand over $2,000. He further stated that he also orally informed her that he had a gun and then deliberately let her see its handle. Accordingly, defendant’s statement clearly satisfies the statutory prerequisite that he used or threatened “the immediate use of a dangerous instrument” in committing the holdup (Penal Law, § 160.15, subd 3). f We are not persuaded by defendant’s contention that, because no express words of threat were used and because he did not actually brandish the gun,^[1] he had not in fact violated subdivision 3 of section 160.15 and that his plea allocution failed to establish the elements thereof. Defendant’s contention is virtually identical to that made in People v Dodt ( 61 NY2d 408 ), that in merely saying “Don’t scream lady, I’ve got a gun in my pocket”, there was no restraint by “threatening to use deadly physical force” as required to establish first degree kidnapping (Penal Law, § 135.25). In Dodt, the gun was never even partly displayed nor later found, yet the Court of Appeals upheld the prosecution’s theory of implied threat from the assailant’s statement of possession and further held that “a threat to use a gun, such as was made here, can only be understood as a threat that the weapon is operable” (id., at p 415). So, too, defendant’s statement that he had a gun and his partial display thereof are sufficient under the circumstances to constitute a threat of immediate use of a dangerous instrument (Penal Law, § 160.15, subd 3). Accordingly, we hold that defendant was guilty as charged and that the trial court was correct in accepting his guilty plea, fin so holding, we also reject defendant’s claim that he was deprived of effective assistance of counsel. He argues that a competent attorney would