People v. Di Giacomo

40 A.D.2d 689, 336 N.Y.S.2d 260, 1972 N.Y. App. Div. LEXIS 3790

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 1972
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 7, 1971, convicting him of robbery in the second degree, upon his plea of guilty, and sentencing him to a prison term of not to exceed five years. Judgment reversed as to the sentence, on the law and as a matter of discretion in the interest of justice, and case remitted to the Criminal Term for further proceedings in accordance with the views herein set forth. The plea minutes of April 21, 1971 evidence an express promise by the trial court to sentence defendant to a term of not more than five years in the custody of the Narcotic Addiction Control Commission. When defendant appeared for sentencing on December 7, 1971, however, the court mistakenly asserted that it had not made such a promise. If the promised sentence was the inducement for the guilty plea, defendant is entitled to have the promise fulfilled or, if the arrangement is to be undone, the People and defendant are entitled to he restored to the status obtaining before the plea (People v. Rice, 25 N Y 2d 822, 823). Rabin, P. J., Hopkins, Martuscello, Latham and Benjamin, JJ., concur.