| People v Matyjewicz |
| 2011 NY Slip Op 00535 [80 AD3d 779] |
| January 25, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v HenryMatyjewicz, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubortof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.),rendered May 10, 2010, convicting him of criminal mischief in the third degree and criminalmischief in the fourth degree, upon his plea of guilty, and imposing a sentence of determinateterms of 11 months of imprisonment for each count, to run concurrently with each other.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, by vacating the conviction of criminal mischief in the third degree under the first countof the indictment, vacating the sentence imposed thereon, dismissing that count of theindictment, and vacating the sentence imposed upon the conviction of criminal mischief in thefourth degree under the second count of the indictment; as so modified, the judgment is affirmed,and the matter is remitted to the Supreme Court, Kings County, before a different judge, forresentencing in accordance herewith.
Pursuant to a negotiated disposition, the defendant entered a plea of guilty to the class Efelony of criminal mischief in the third degree (Penal Law § 145.05 [2]) and the class Amisdemeanor of criminal mischief in the fourth degree (Penal Law § 145.00 [1]), with theunderstanding that, if he satisfactorily completed 210 hours of community service, the felonyplea would be vacated and he would be sentenced to a three-year term of probation for themisdemeanor conviction. The record reflects, and it is undisputed, that the community serviceobligation was the only condition imposed upon the defendant. The defendant satisfactorilycompleted the community service and thereafter appeared in court on two dates set for sentencingproceedings. Thereafter, on the third adjourn date, the defendant was not present in court and heappeared the following day. The Supreme Court declined to sentence him to a term of probationpursuant to the negotiated plea and imposed a sentence of incarceration.
As the People correctly concede, under the circumstances, the defendant cannot be restoredto his pre-plea status by allowing him to withdraw his plea of guilty, and as a matter of essentialfairness, he is entitled to the benefit of the plea agreement (see People v Danny G., 61NY2d 169, 175-176 [1984]; People v McConnell, 49 NY2d 340, 349 [1980]; Peoplev Grimaldi, 200 AD2d 687, 689 [1994]; cf. People v Rubendall, 4 AD3d 13, 19 [2004]). Accordingly, thejudgment must be modified to vacate the defendant's conviction of criminal mischief in the thirddegree and the sentence imposed thereon, and [*2]we remit thematter to the Supreme Court, Kings County, for resentencing on the conviction of criminalmischief in the fourth degree pursuant to the terms of the negotiated plea. In light of thesentencing judge's conduct, including sentencing the defendant based upon the violation of acondition not previously imposed upon the defendant as part of his plea agreement and makingintemperate remarks, the resentencing should be held before a different Justice (see People v Garcia, 69 AD3d1229 [2010]; People v Lodge,54 AD3d 875 [2008]). Angiolillo, J.P., Dickerson, Hall and Austin, JJ., concur.