People v. Jones

70 A.D.2d 1054, 417 N.Y.S.2d 568, 1979 N.Y. App. Div. LEXIS 12688

Opinion

— Judgment insofar as it imposed sentence unanimously reversed, sentence vacated and matter remitted to Supreme Court, Erie County Trial Term, for further proceedings in accordance with the following memorandum: Before defendant interposed his proposed plea of guilty of robbery, third degree, in satisfaction of the indictment against him, he acknowledged that he was a second felony offender and the court advised him that if he so pleaded, the sentence would be two to four years. Defendant did so plead, and April 14, 1978 was fixed as the date for sentencing. Defendant failed to appear for sentencing on that date and on adjourned dates. He was finally brought before the court for sentencing on November 1, 1978, over six months later. Because defendant had failed to appear for sentencing for such length of time, the court declined to adhere to the agreed sentence, and sentenced him to three and one-half to seven years’ imprisonment. On this appeal defendant not only contends that the sentence was excessive but that the court erred in not offering him an opportunity to withdraw his plea in lieu of increasing the sentence. We agree that the court erred in this respect (People v Selikoff, 35 NY2d 227, 241, cert den 419 US 1122). The sentence must, therefore, be vacated and the matter remitted to Supreme Court Erie County Trial Term with direction to the court either to impose the original agreed sentence or to offer to defendant an opportunity to withdraw his plea. If the court declines to adhere to the original sentence agreement and offers defendant an opportunity to withdraw his guilty plea, the court will no longer be bound by its original agreement of sentence. If defendant is then convicted after trial or on a new plea of guilty, the court may proceed to impose the sentence which it deems appropriate, including consideration of defendant’s failure in 1978 to appear for sentencing as directed. (Appeal from judgment of Erie Supreme Court — Robbery, third degree.) Present — Simons, J. P., Schnepp, Callahan, Witmer and Moule, JJ.