People v Donnelly

2011 NY Slip Op 00049 [80 AD3d 797]

January 6, 2011

Appellate Division, Third Department

As corrected through Wednesday, March 9, 2011

The People of the State of New York, Respondent, v CharlesDonnelly, Appellant.

—[*1]Martin J. McGuinness, Glens Falls, for appellant.

Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.

McCarthy, J. Appeal from a judgment of the County Court of Greene County (Lalor, J.),rendered April 28, 2009, convicting defendant upon his plea of guilty of the crime of burglary inthe third degree.

Defendant pleaded guilty to a superior court information charging him with burglary in thethird degree and waived his right to appeal. The People agreed, as part of the plea bargain, torecommend a sentence of 11/3 to 4 years in prison. County Court indicated that itwould impose that recommended prison sentence unless the court was "surprised by something"or defendant got "in trouble between now and the sentencing date." The court then askeddefendant if "anybody made any other promises" to induce his guilty plea, and he responded thatthey had not.

At sentencing, the People expressed concern that defendant did not accept responsibility forhis actions during the presentence investigation. The People then recommended a sentence of11/3 to 5 years in prison. County Court, finding that defendant did not cooperatewith the Probation Department in completing the presentence investigation report, imposed aprison sentence of 11/3 to 5 years. Defendant appeals.

Initially, although defendant has been released from prison, his appeal is not moot given thathe remains on parole (see People vHastings, 24 AD3d 954, 956 n [2005]). Additionally, defendant's waiver of appeal doesnot preclude his argument concerning County Court's [*2]enhancement of his sentence beyond the terms of the pleaagreement (see People v Armstead,52 AD3d 966, 967 [2008]). This issue is unpreserved, however, due to defendant's failure tomove to withdraw the plea or vacate the judgment of conviction (see id.). Despite thisfailure, we exercise our interest of justice jurisdiction to take corrective action. Byrecommending a sentence greater than agreed, the People failed to honor their promise under theplea agreement, thereby depriving defendant of part of his bargain (see Santobello v NewYork, 404 US 257, 262 [1971]; People v Tindle, 61 NY2d 752, 754 [1984];People v Hoeltzel, 290 AD2d 587, 588 [2002]). This violation of the agreement, alone,entitles defendant to vacatur of his sentence (see id.).

Further, while County Court retained the discretion to impose a different sentence than theone recommended by the People, because the court had made statements at the plea colloquy thatit intended to impose the recommended sentence, the court was required to offer defendant anopportunity to withdraw his guilty plea before it deviated from those statements and imposed anenhanced sentence (see People v Schultz, 73 NY2d 757, 758 [1988]; People v Brunelle, 47 AD3d 1067,1067 [2008], lv denied 11 NY3d 786 [2008]). This is especially true where, as here, thecourt did not advise defendant of express conditions he needed to satisfy to be sentenced inaccordance with the plea agreement, such as cooperating with the Probation Department andaccepting responsibility during the presentence investigation (see People v Armstead, 52AD3d at 967). Hence, we remit the matter to County Court to impose the agreed-upon sentenceor permit defendant to withdraw his plea before imposing the enhanced sentence.

Peters, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the judgment is modified, asa matter of discretion in the interest of justice, by vacating the sentence imposed; matter remittedto the County Court of Greene County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.