| People v Garcia |
| 2010 NY Slip Op 00592 [69 AD3d 1229] |
| January 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Raul Garcia,Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Christopher I. Simser Sr. of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Cortland County (Campbell, J.),rendered July 17, 2008, convicting defendant upon his plea of guilty of the crime of criminalpossession of a forged instrument in the second degree (two counts).
An indictment was handed down against defendant charging him with two counts of criminalpossession of a forged instrument in the second degree, arising from his attempt to withdraw a$2,000 cash advance using a credit card that was not his. Following negotiations, defendantpleaded guilty to both counts and was sentenced to consecutive prison terms of2
It is well settled that the People must honor any promise made during plea negotiations withregard to a sentencing recommendation (see People v Clark, 61 AD3d 1179, 1182 [2009], lv denied12 NY3d 924 [2009]; People v Hoeltzel, 290 AD2d 587, 588 [2002]; see alsoSantobello v New York, 404 US 257, 262-263 [1971]). Here, while discussing a possiblenegotiated sentence, County Court inquired whether the People would be seeking consecutivesentences for the two counts in the indictment. The People responded that, while defendant wasin possession of two credit cards, he only tried to negotiate one of them and, thus, consecutivesentences "might be a stretch," indicating their intent to forgo requesting consecutive sentences.The court appeared to agree, but made no sentence promise. At sentencing, the court recollectedthat, at the [*2]time defendant's plea to the two counts wasentered, the "recommended sentence by the [D]istrict [A]ttorney was two and a third to sevenyears concurrent." However, the People, thereafter, argued for consecutive sentences anddefendant was so sentenced, over his objection that he was induced to enter his guilty plea by thepromise of concurrent sentences.
While defendant waived his right to appeal at the time of the plea, this does not foreclose hisclaims addressed to the People's subsequent failure to honor their plea promise (seePeople v Hoeltzel, 290 AD2d at 588). Under these circumstances, we find that "[the People]almost certainly violated the spirit of the bargain" and, thus, the appropriate course is to remit thematter for resentencing before a different judge to avoid any possible prejudice to defendantfrom the People's improper argument and recommendation that defendant's sentences beconsecutive (People v Muller, 174 AD2d 838, 839 [1991]; see People v Hoeltzel,290 AD2d at 588; People v Oakes, 252 AD2d 661, 662-663 [1998]).
Mercure, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofCortland County for resentencing before a different judge; and, as so modified, affirmed.