People v. Michael

190 A.D.2d 758

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 1993
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered April 22, 1991, convicting him of attempted criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing an indeterminate term of three to nine years imprisonment.

Ordered that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Richmond County, for further proceedings in accordance herewith.

The transcript of the minutes of the guilty plea proceeding does not indicate, nor can it be implied therefrom, that the defendant was told that if he was subsequently arrested or failed to appear on the date scheduled for sentencing the court could impose a harsher sentence than the one to three years imprisonment which the court promised was "[t]he worst you are looking at” in consideration of his plea of guilty. Thus, even though the defendant failed to appear for sentencing and was subsequently arrested, the sentencing court could not impose a sentence greater than that bargained for without first affording the defendant an opportunity to withdraw the plea and to stand trial (see, People v White, 144 AD2d 711; People v Cook, 130 AD2d 503). Accordingly, we remit the matter to the Supreme Court, Richmond County, to afford it the opportunity to either impose the promised sentence or permit the defendant to withdraw his plea of guilty. Mangano, P. J., Sullivan, O’Brien, Ritter and Pizzuto, JJ., concur.