| People v Muhammad |
| 2015 NY Slip Op 07702 [132 AD3d 1068] |
| October 22, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJamil A. Muhammad, Appellant. |
Frank A. Sarat, Homer, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered July 2, 2013, convicting defendant upon his plea of guilty of the crime offalsifying business records in the first degree.
Defendant pleaded guilty to one count of falsifying business records in the firstdegree in satisfaction of a two-count indictment and other pending and potential charges.When the plea was entered, County Court agreed to impose a prison sentence of1
Defendant argues that his plea was involuntary because it was induced by CountyCourt's unfulfilled promise to order that he be admitted into a shock incarcerationprogram and that the court improperly imposed a sentence in violation of the pleaagreement. Although defendant failed to preserve this argument by making anappropriate postallocution motion (see People v Neithardt, 127 AD3d 1502, 1503 [2015]; People v Smith, 123 AD3d1375, 1376 [2014], lv denied 26 NY3d 935 [2015]), we will exercise ourdiscretion to take corrective action in the interest of justice (see CPL 470.15[6]).
We start with the principle that a trial court always "retains discretion in fixing an[*2]appropriate sentence up until the time of thesentencing" (People v Schultz, 73 NY2d 757, 758 [1988]). However, when thecourt wishes to depart from a promised sentence, it must either honor the promise or givethe defendant the opportunity to withdraw the guilty plea (see People vMcConnell, 49 NY2d 340, 346 [1980]; People v Selikoff, 35 NY2d 227, 241[1974], cert denied 419 US 1122 [1975]). Accordingly, "[a] guilty plea inducedby an unfulfilled promise either must be vacated or the promise honored" (People v Collier, 22 NY3d429, 433 [2013], cert denied 573 US &mdash, 134 S Ct 2730 [2014][internal quotation marks and citation omitted]).
Here, prior to defendant's guilty plea, County Court indicated its belief that defendantwas eligible for shock incarceration and then unequivocally promised that it "wouldorder him into it." When defendant specifically asked if shock incarceration wasguaranteed, the court stated that it "would order it absolutely" and that a failure on thepart of prison authorities to admit him would "defy an order of the [c]ourt." Furthermore,defense counsel stated that he was recommending that defendant accept the pleaagreement "especially with a shock commitment." Thus, regardless of the fact that"neither County Court nor the People possessed the authority to guarantee [defendant's]participation" in the shock incarceration program (People v Vanguilder, 32 AD3d 1110, 1110-1111 [2006],lv denied 7 NY3d 904 [2006]; accord People v Benson, 100 AD3d 1108, 1109 n [2012];People v Taylor, 284 AD2d 573, 574 [2001], lv denied 96 NY2d 925[2001]), the record reflects that defendant, in accepting the plea, relied upon CountyCourt's promise to do exactly that. Consequently, we find that defendant's plea was notknowing, voluntary and intelligent, and that, because County Court's promise todefendant cannot be honored as a matter of law, he is entitled to vacatur of his guilty plea(see People v Wiggins, 126AD3d 1229, 1230-1231 [2015]; compare People v Benson, 100 AD3d at1109; People v Williams, 84AD3d 1417, 1417-1418 [2011], lv denied 17 NY3d 863 [2011]; People vVanguilder, 32 AD3d at 1110-1111).
Egan Jr., J.P., Devine and Clark, JJ., concur. Ordered that the judgment is reversed,on the law, and matter remitted to the County Court of Broome County for furtherproceedings not inconsistent with this Court's decision.