People v. Spence

278 A.D.2d 96, 717 N.Y.S.2d 534, 2000 N.Y. App. Div. LEXIS 13100

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 2000
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered November 17, 1997, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously reversed, on the law, the plea and sentence vacated, and the case remanded for further proceedings.

As the People correctly concede, defendant’s motion to withdraw his plea should have been granted. At the time of the plea, the court promised defendant that his sentence would run concurrently with a 20-year sentence that defendant was expected to receive on his anticipated plea of guilty on an unrelated charge in another State. The court also promised defendant that he would be permitted to withdraw the plea if the out-of-State case did not result in a plea of guilty and a 20-year sentence. Since defendant did not plead guilty in the out-of-State matter, the court should have granted defendant’s request to withdraw his plea as promised.

We also note that defendant’s sentence was less than the legal minimum for a second violent felony offender (see, Penal Law § 70.04 [3] [b]). Concur — Rosenberger, J. P., Williams, Tom, Ellerin and Wallach, JJ.