People v. Jiminez

73 A.D.2d 897, 424 N.Y.S.2d 191

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1980
• Status: Published

Opinion

Appeal from judgment of conviction, Supreme Court, New York County, rendered January 5, 1978, convicting defendant on his plea of guilty of attempted robbery in the first degree and sentencing him to an indeterminate sentence of 0 to 6 years, held in abeyance, and matter remanded for a hearing to determine whether the sentence imposed departed from the sentence promise. The issue presented on this appeal is whether the sentence of 0 to 6 years imposed following the defendant’s plea of guilty violated a promise by the Judge to sentence the defendant to no more than 0 to 3 years. The pleading minutes reflect that the Judge promised the lesser sentence. However, the District Attorney contends that the minutes represent a stenographic error and that in any event the understanding was that the defendant would be sentenced to 0 to 6 years. This contention is persuasively supported by the sentencing minutes which disclose no objection whatever when the sentence was imposed even though both the Judge and the defense counsel had previously alluded to the fact that the sentence had been discussed. It does not seem likely that the Judge would have either forgotten or disregarded his promise and that the discrepancy would not have been called to his attention by the District Attorney, defense counsel or defendant. Nonetheless, in view of the contrary indication in the pleading minutes, a hearing to determine whether or not there was in fact a departure from the promise is required and accordingly directed. Concur—Fein, J. P., Sandler, Sullivan and Bloom, JJ.