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THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. PAQUITO RODRIGUEZ, DEFENDANT-APPELLANT.

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), 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).

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.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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PEOPLE v. RODRIGUEZ
(Oct 19, 2000)