People v. Piccolo

56 A.D.2d 804, 392 N.Y.S.2d 651, 1977 N.Y. App. Div. LEXIS 11098

Opinion

Judgment of the Supreme Court, New York County, rendered July 9, 1976, convicting defendant upon his plea of guilty of the crime of criminal contempt in the second degree (Penal Law, § 215.50) and sentencing him to 60 days’ imprisonment at the New York City Penitentiary, probation for 2 years and 10 months and a fine of $1,000, unanimously affirmed. The plea minutes of April 24, 1976 are completely silent as to the alleged representation by defendant that the Assistant District Attorney promised to make no statement concerning punishment at the time of sentence. At sentence the Assistant District Attorney completely disputed such assertion and summarized the understanding he had with the counsel who represented defendant at the time of plea, that although he would not recommend a specific sentence, he would not have consented to a plea "in which your Honor committed himself to give no time”. The sentence minutes disclose the court’s understanding that a jail sentence— limited to not more than 60 days—was a distinct possibility. Although it is true that at sentence the Assistant District Attorney conceded there was some conversation between him and defense counsel at time of plea concerning the position he would take at sentence, the fact is no record was made in the plea minutes of the actual understanding between counsel. On this record, there is no basis for a conclusion that the Assistant District Attorney promised not to recommend incarceration or in any manner acted improperly. Concur—Stevens, P. J., Birns, Capozzoli and Nunez, JJ.