| People v Lodge |
| 2008 NY Slip Op 07013 [54 AD3d 875] |
| September 16, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Lodge, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Danielle Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Grosso, J.),rendered February 26, 2007, convicting him of sexual abuse in the first degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byvacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matteris remitted to the Supreme Court, Queens County, for resentencing before a different justice inaccordance herewith.
The defendant pleaded guilty to sexual abuse in the first degree, with a promise of sixmonths' imprisonment, plus probation. Additionally, the court agreed to consider whether or notit would grant the defendant youthful offender treatment. As part of the plea bargain, thedefendant, inter alia, waived his right to appeal. For their part of the plea bargain, the People,among other things, explicitly promised to take no position at sentencing as to whether or not thedefendant was to be given youthful offender treatment.
At the sentencing, in spite of that promise, the People told the court that they were stronglyopposed to the defendant receiving youthful offender treatment based upon the circumstances ofthe case. Although the defendant did not object to the People's comments and did not seek towithdraw his plea, his counsel strenuously argued for youthful offender treatment. The courtdenied that request.[*2]
Contrary to the People's contention, this issue is notbarred by the waiver of the right of appeal. It involves post-plea conduct not covered by thatwaiver (see People v Stowe, 15AD3d 597 [2005]; People v Miles, 268 AD2d 489 [2000]).
"The principle that a promise which induces [a] guilty plea must be honored 'is not applicablewhere . . . the defendant's claim has not been preserved for appellate review andwhere the sentence actually imposed was not abusive or illegal' " (People v Marinaro, 45 AD3d 867,868-869 [2007], quoting People v Lewis, 216 AD2d 328 328-329 [1995]; see People v Taubenkraut, 48 AD3d598 [2008]). The sentence that was imposed, the agreed-upon term of 6 months'incarceration and 10 years' probation, was neither illegal nor abusive. Since the defendant failedto preserve for appellate review the issue of the People's failure to keep their commitment, it isnot reviewable as a matter of law.
However, the action of the People in arguing to the court that the defendant should notreceive youthful offender treatment, after explicitly promising not to do so, was blatantly unfairand offends our sense of justice and integrity. Accordingly, we reach this issue in the exercise ofour interest of justice jurisdiction and remit the matter to the Supreme Court, Queens County, forresentencing. Upon remittal, the People shall abide by their promise to state that they take noposition with regard to the granting of youthful offender treatment to the defendant. Mastro, J.P.,Florio, Dickerson and Belen, JJ., concur.