People v Carrasquillo

2015 NY Slip Op 08430 [133 AD3d 774]

November 18, 2015

Appellate Division, Second Department

As corrected through Wednesday, December 30, 2015

[*1]

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

Lynn W.L. Fahey, New York, N.Y., for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and JodiL. Mandel of counsel; Gregory Musso on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County(Sciarrino, Jr., J.), rendered April 23, 2014, convicting him of attempted robbery in thethird degree, upon his plea of guilty, and sentencing him to an indeterminate term ofimprisonment of 2 to 4 years.

Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the sentence imposed; as so modified, the judgment is affirmed, andthe matter is remitted to the Supreme Court, Kings County, for resentencing inaccordance herewith.

The defendant pleaded guilty to attempted robbery in the third degree in exchangefor the Supreme Court's promise that it would sentence him to the agreed-uponindeterminate term of imprisonment of 11/2 to 3 years. As a condition ofthe court's promised sentence, the defendant agreed, inter alia, to cooperate with theDepartment of Probation (hereinafter the DOP). The defendant appeared for hisinterview with the DOP and answered all of the questions asked, but in his answers hedenied his guilt. The defendant did not, however, express any intention to withdraw hisguilty plea. At sentencing, the court found the defendant's denial of guilt to be a violationof the condition that he cooperate with the DOP, and imposed an enhanced sentence.

The defendant's challenge to the imposition of an enhanced sentence is unpreservedfor appellate review, since he did not object to the sentence or move to withdraw his pleaon that basis (see CPL 470.05 [2]; People v Zeldine, 121 AD3d 928, 929 [2014]; People v Scoca, 38 AD3d801 [2007]; People vGodfrey, 33 AD3d 623 [2006]). However, we consider the matter in the exerciseof our interest of justice jurisdiction. As the People correctly concede, the defendant'sdenial of his guilt to the DOP was not a violation of the condition that he cooperate withthe DOP (see People vPianaforte, 126 AD3d 815, 816 [2015]; People v Zeldine, 121 AD3d at929). While a court is free to impose a condition requiring a defendant not to deny his orher guilt when interviewed by the DOP, the Supreme Court did not impose such acondition here (see People v Pianaforte, 126 AD3d at 816; People vZeldine, 121 AD3d at 929). Thus, the court erred in imposing an enhanced sentencebased on its conclusion that the defendant violated a condition of the negotiated pleaagreement (see People v Pianaforte, 126 AD3d at 816; People v Zeldine,121 AD3d at 929).

[*2] Accordingly, wevacate the sentence imposed, and remit the matter to the Supreme Court, Kings County,for the purpose of imposing the originally promised indeterminate term of imprisonmentof 11/2 to 3 years. Rivera, J.P., Dickerson, LaSalle and Barros, JJ.,concur.