| People v Sosa-Rodriguez |
| 2009 NY Slip Op 04931 [63 AD3d 861] |
| June 9, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Engels Sosa-Rodriguez, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), forrespondent.
Appeals by the defendant from two judgments of the County Court, Suffolk County(Braslow, J.), both rendered May 16, 2006, convicting him of attempted criminal sale of acontrolled substance in the third degree under indictment No. 01703/05, and burglary in the thirddegree under Superior Court information No. 02115/05, upon his pleas of guilty, and sentencinghim to a determinate term of imprisonment of eight years plus three years of postreleasesupervision upon the conviction of attempted criminal sale of a controlled substance in the thirddegree and an indeterminate term of imprisonment of 2 to 4 years upon the conviction ofburglary in the third degree, both sentences to run consecutively.
Ordered that the judgments are modified, on the law, by vacating the sentences imposed; asso modified, the judgments are affirmed, and the matters are remitted to the County Court,Suffolk County, for further proceedings in accordance herewith.
The defendant was convicted, upon his pleas of guilty, of attempted criminal sale of acontrolled substance in the third degree and burglary in the third degree. The County Courtpromised the defendant a sentence consisting of a determinate 2½-year term ofimprisonment plus a 2-year period of postrelease supervision on the conviction of attemptedcriminal sale of a controlled substance in the third degree (hereinafter the controlled substanceconviction), and a concurrent indeterminate term of imprisonment of 2 to 4 years on theconviction of burglary in the third degree (hereinafter the burglary conviction). The courtadvised the defendant, inter alia, that if he failed to appear for sentencing, he would be sentencedto a determinate term of imprisonment of eight years on the controlled substance conviction, torun consecutively to the sentence imposed on the burglary conviction, but it did not advise thedefendant that the postrelease supervision component of the sentence would be enhanced. Afterthe defendant failed to appear on the date scheduled for sentencing and was returned on awarrant, the County Court imposed the determinate term of imprisonment of eight years plus athree-year period of postrelease supervision with respect to the controlled substance conviction,and an indeterminate term of imprisonment of 2 to 4 years with respect to the burglaryconviction, to run consecutively.[*2]
In exchange for his pleas of guilty, the defendant waspromised that his sentence on the controlled substance conviction would consist of a2½-year term of imprisonment plus a two-year period of postrelease supervision, and thatif he failed to appear for sentencing, the imprisonment component of the sentence would beincreased to eight years, and would run consecutively to the sentence imposed on the burglaryconviction. Since, in addition to the promised enhancements, the postrelease supervisioncomponent of that sentence was increased from two years to three years, the defendant did notreceive the bargained-for sentence.
Accordingly, we vacate the sentence imposed on the controlled substance conviction, as wellas the inextricably intertwined sentence imposed on the burglary conviction, and remit the matterto the County Court, Suffolk County, to allow the County Court to (1) impose the promisedsentences, which, in light of the defendant's failure to appear for sentencing, consist of adeterminate term of imprisonment of eight years, plus a two-year period of postreleasesupervision on the controlled substance conviction, and an indeterminate term of imprisonmentof 2 to 4 years on the burglary conviction, to run consecutively, (2) afford the defendant theopportunity to accept the previously-imposed sentences, including the enhanced period ofpostrelease supervision, or, (3) in the absence of either of those results, permit the defendant towithdraw his pleas of guilty (see People v Selikoff, 35 NY2d 227 [1974], certdenied 419 US 1122 [1975]; Peoplev Rossetti, 55 AD3d 637 [2008]; People v Kegel, 55 AD3d 625 [2008]; People v Rubendall, 4 AD3d 13,20 [2004]). Spolzino, J.P., Covello, McCarthy and Belen, JJ., concur.