People v. Bogan

63 A.D.2d 582, 404 N.Y.S.2d 621, 1978 N.Y. App. Div. LEXIS 11414

Opinion

Judgment, Supreme Court, Bronx County, rendered July 6, 1976, convicting defendant upon a guilty plea of robbery in the first degree and sentencing him to an indeterminate term with a maximum of 14 years and a minimum of seven years, unanimously modified, on the law and as a matter of discretion, in the interest of justice, to reduce the sentence to an indeterminate term with a maximum of nine years and a minimum of four and one-half years, and otherwise affirmed. The plea bargain included a promised sentence of an indeterminate term of four to 15 years. The court agreed to the sentence which had been promised and the prosecutor advised that the People did not intend to offer a predicate felony statement. Between the time of plea and the time sentence was imposed, however, the Assistant District Attorney learned that defendant was a predicate felon and the sentencing court thereupon imposed an indeterminate sentence with a maximum of 14 years and a minimum of seven years. We find that although the court was precluded from adhering to the previously agreed upon sentence by reason of defendant’s status as a second felony offender (Penal law, § 70.06), the sentencing Justice should have conformed to the promised sentence as nearly as practicable. Accordingly, we deem the reduction in the sentence herein imposed to be necessary, in the interest of justice, to give effect to the unconditional commitment by the court to sentence defendant in accordance with the agreement reached in conjunction with the plea bargain. Concur—Lupiano, J. P., Fein, Lane, Lynch and Sandler, JJ.