| People v Bonville |
| 2010 NY Slip Op 00588 [69 AD3d 1223] |
| January 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v BruceBonville, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Chantelle Schember of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered September 17,2008 in Clinton County, upon a verdict convicting defendant of the crimes of assault in thesecond degree and unlawfully dealing with a child.
Defendant shot his son in the head when his pistol discharged during a violent altercationbetween them. Defendant was charged by indictment with attempted murder in the seconddegree, assault in the first degree, assault in the second degree and criminal use of a firearm, aswell as unlawful dealing with a child in relation to a separate incident involving his 17-year-olddaughter. Defense counsel and the prosecutor negotiated a plea bargain that provided fordismissal of all charges except assault in the second degree and, upon defendant's plea of guiltyto the remaining charge, the prosecutor agreed that he would recommend a sentence of threeyears in prison. The People then moved for dismissal of the other charges pursuant to CPL210.40, and defendant pleaded guilty to the second degree assault charge.[FN1][*2]Supreme Court accepted his plea and granted the People'smotion, noting on the record that the evidence on the two most serious charges was weak andthat trial on those charges would have been a waste of time and judicial resources (seeCPL 210.40 [3]). At the subsequent sentencing proceeding, however, Supreme Court informeddefendant that, based upon its further review of the underlying facts, it would not accept thePeople's sentence recommendation and would, instead, impose a harsher sentence. SupremeCourt then offered defendant the opportunity to withdraw his plea. Defendant did so, butspecifically objected to reinstatement of the entire indictment. Nevertheless, Supreme Court thenconducted a trial of all of the charges on the original indictment without resubmission of thecharges to the same or another grand jury (see CPL 210.20 [1] [i]; [4]). The jury founddefendant guilty of assault in the second degree as well as unlawfully dealing with a child, andacquitted him of the other charges. Supreme Court then sentenced defendant to seven years inprison with three years of postrelease supervision. Defendant now appeals.
Initially, we cannot agree with defendant's contention that he is entitled to specificperformance of the original plea bargain. Once Supreme Court informed defendant of its intentto impose a harsher sentence than defendant had expected, he chose to withdraw his plea. Underthese circumstances, defendant would not be entitled to specific performance of the plea bargainunless he had been placed in a "no-return position" in reliance on the plea agreement by, forexample, providing information in aid of the prosecution of another criminal case (People vMcConnell, 49 NY2d 340, 345-346 [1980]; see People v Herber, 24 AD3d 1317, 1318 [2005], lvdenied 6 NY3d 814 [2006]). Here, by pleading guilty, defendant gave up nothing but hisright to a trial. Thus, the appropriate remedy for the failed plea bargain was the opportunity towithdraw his plea and proceed to trial (see People v Selikoff, 35 NY2d 227, 241 [1974];People v Stewart, 32 AD3d403, 403 [2006]; People vRubendall, 4 AD3d 13, 19 [2004]; Matter of Guzman v Harrigan, 158 AD2d872, 873 [1990]).
There is, however, merit in defendant's alternate contention that he should have been triedonly on the remaining charge of assault in the second degree because all of the other chargeswere dismissed upon his plea and not properly resubmitted.[FN2]Inasmuch as defendant withdrew his plea without agreeing to their reinstatement, the subsequentprosecution of those charges was barred by CPL 210.20 (4) (see People v Capolongo, 85NY2d 151, 167 n 9 [1995]; People v Cook, 93 AD2d 942, 943 [1983]). Even thoughdefendant was later acquitted of the charges of attempted murder in the second degree andassault in the first degree, the error was not harmless because the evidence submitted regardingthe more severe charges could have "induced the jury to find him guilty of the less seriousoffense" (People v Mayo, 48 NY2d 245, 251 [1979]; see Price v Georgia, 398US 323, 331 [1970]). Accordingly, there must be a new trial of only the charge of assault in thesecond degree.
Our determination makes it unnecessary to consider defendant's remaining contentions.[*3]
Peters, J.P., Lahtinen, Kavanagh and Garry, JJ., concur.Ordered that the judgment is reversed, on the law, and matter remitted to the Supreme Court fora new trial on the charge of assault in the second degree.
Footnote 1: Because the indictment chargeddefendant with class B armed violent felonies, his plea to assault in the second degree, a class Dviolent felony, could not be in satisfaction of the entire indictment (see CPL 220.10 [5][d] [i]), and the more serious charges first had to be dismissed.
Footnote 2: In fact, the People wereprecluded from seeking leave to resubmit those charges dismissed at their request (see Peoplev Strudwick, 178 AD2d 947, 948 [1991], lv denied 80 NY2d 839 [1992]; Peoplev Sokol, 97 AD2d 522, 522 [1983]).