People v. Melendez

75 A.D.2d 794, 428 N.Y.S.2d 257, 1980 N.Y. App. Div. LEXIS 11379

Opinions

Judgment, Supreme Court, New York County, rendered on June 15, 1977, convicting defendant upon his pleas of guilty to two counts of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39), and sentencing him to two indeterminate terms of imprisonment of from four years to life, both to run concurrently, modified, on the law and the facts, to the extent of vacating the sentence and remanding for resentence. Defendant-appellant was indicted for five drug sales, under two separate indictments charging sales in the second and third degrees. He entered pleas of guilty to one count of criminal sale of a controlled substance in the third degree under each indictment. The promised sentence on each plea was four years to life, to run concurrently, which plea bargain was fulfilled. In People v Maldonado (70 AD2d 308), we stated (p 309), "In our view it, is unwise for a Trial Justice, in connection with a negotiated plea of guilty, and in advance of a presentence report, to make a purportedly unconditional promise to the prosecutor that the sentence will not be less than agreed upon; and if such a promise is made, the Judge is not bound by it.” and (p 310), "that 'promise’ to the prosecutor is subject to the presentence report and any other information that the Judge may have at the time of sentence and that the Judge is free to impose whatever sentence he thinks is just within the legal limits.” (Emphasis added.) We see no reason to depart from that policy. While the sentencing minutes, as reproduced in the dissent, might also convey, as indicated by our dissenting brother, the Judge’s personal view concerning the drug law sentencing structure, that is by no means all they convey. In the light of the scope available to him, to wit, a minimum of from one year, the sentencing Judge’s comment that "I could not sentence you to less than four years unless the District Attorney would recommend it” shows us quite clearly that he felt bound by the promise to the prosecutor and did not feel, as he must, that "the judge is free to impose whatever sentence he thinks is just within the legal limits.” Concur—Sandler, J. P., Sullivan, Markewich and Carro, JJ.