People v. Dollinger

196 A.D.2d 549, 600 N.Y.S.2d 767

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 9, 1993
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Suffolk County (Weissman, J.), rendered January 11, 1993, convicting him of operating a motor vehicle while under the influence of alcohol, as a felony, upon his plea of guilty, and imposing sentence of an indeterminate term of lx/á to 4 years imprisonment.

Ordered that the judgment is reversed, on the law, and the matter is remitted to the County Court, Suffolk County, to give the defendant an opportunity to withdraw his plea of guilty.

The transcript of the minutes of the defendant’s plea of guilty does not indicate that the defendant was told, nor can it be implied therefrom, that if he failed to appear on the date scheduled for sentencing, the court could impose a harsher sentence than the promised six months imprisonment to run concurrent to, and as a condition of, five years probation. Thus, even though the defendant failed to appear for sentencing, the sentencing court could not impose a sentence greater than that bargained for without first affording the defendant an opportunity to withdraw the plea (see, People v Rosa, 194 AD2d 755; People v White, 144 AD2d 711). Mangano, P. J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.