| Matter of Barnwell v Breslin |
| 2007 NY Slip Op 09650 [46 AD3d 990] |
| December 6, 2007 |
| Appellate Division, Third Department |
| In the Matter of Jessica Barnwell, Petitioner, v Thomas A. Breslin,as County Judge of Albany County, Respondent. |
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Kane, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR506 [b] [1]) to compel respondent to accept petitioner's plea of guilty to the crime of attemptedcriminal possession of marihuana in the second degree.
After the People obtained an indictment charging petitioner with criminal possession ofmarihuana in the first degree and unlicensed growing of cannabis, they made an offer forpetitioner to plead guilty to attempted criminal possession of marihuana in the second degree inexchange for her cooperation against a codefendant, a sentence of two years imprisonment andone year of postrelease supervision, plus forfeiture of cash found at the time of arrest. Thesentence attached to this offer was illegal; attempted criminal possession of marihuana in thesecond degree is a class E felony subject to a determinate prison sentence of 1 to 1½ years(see Penal Law § 110.05 [6]; §§ 221.25, 70.70 [2] [a] [iv]). Petitionerappeared in County Court, where respondent was the presiding judge, and indicated that she wasinclined to accept the plea offer, but the proposed sentence exceeded the legal maximum. Thematter was adjourned at defense counsel's request. Upon returning to court, defense counselstated that petitioner was prepared to enter the plea, but asked respondent to adjust the sentenceto comport with the legal maximum for the crime contained in the plea offer. The People neveroffered a plea with a lower sentence. Respondent refused to accept such a plea.
Petitioner commenced this CPLR article 78 proceeding seeking to compel respondent, [*2]in his capacity as County Judge, to accept her plea of guilty toattempted criminal possession of marihuana in the second degree in accordance with the pleaoffer, but with a reduced, legal sentence. Initially, the petition should be dismissed based uponpetitioner's failure to designate the District Attorney as a party to this proceeding (seeCPLR 7804 [i]; Matter of Thomas v Justices of Supreme Ct. of State of N.Y., QueensCounty, 304 AD2d 585, 585-586 [2003]).
The petition should also be dismissed on the merits. Mandamus is an extraordinary remedywhich lies only to compel performance of acts which are mandatory, not those that arediscretionary (see Klostermann v Cuomo, 61 NY2d 525, 539 [1984]; Matter ofSchroedel v LaBuda, 264 AD2d 136, 138 [2000], lv denied 95 NY2d 754 [2000],cert denied 531 US 860 [2000]). Courts are mandated to entertain pleas, but each courtretains discretion regarding the acceptance of any particular plea offer (see Matter ofSchroedel v LaBuda, 264 AD2d at 138). While a defendant may plead guilty to an entireindictment as a matter of right (see CPL 220.10 [2]), a defendant may only enter a plea ofguilty to a lesser included offense with both the People's consent and the court's permission(see CPL 220.10 [3], [4]).
Even if petitioner agreed to plead to the lesser crime consistent with the terms of the pleaoffer, respondent retained the discretion to accept or reject that plea, or attach reasonableconditions to the plea before accepting it (see People v Shervington, 25 AD3d 628, 629 [2006], lvdenied 6 NY3d 818 [2006]; see also People v Smith, 272 AD2d 679, 682 [2000],lv denied 95 NY2d 938 [2000]). Petitioner did not plead in accordance with the pleaoffer, but attempted to add conditions of her own as part of her plea. Despite respondent's priorindication of his approval of the plea offer, he certainly was not mandated to accept a guilty pleacontaining an illegal sentence—once he became aware of that circumstance—noraccept a plea on terms other than those offered (compare People v Sherwood, 28 AD3d 259, 260 [2006], lvdenied 7 NY3d 763 [2006]). As respondent had discretion to reject petitioner's plea, theremedy of mandamus is not available to petitioner.
Mercure, J.P., Spain, Carpinello and Mugglin, JJ., concur. Adjudged that the petition isdismissed, without costs.