People v. Parker
| Citation | 271 A.D.2d 63,711 N.Y.S.2d 656 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>MICHAEL PARKER, Appellant. |
| Decision Date | 07 July 2000 |
| Court | New York Supreme Court Appellate Division |
271 A.D.2d 63
711 N.Y.S.2d 656
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
MICHAEL PARKER, Appellant.
July 7, 2000.
[271 A.D.2d 64]
Elizabeth Clarke, Public Defender's Office, Rochester, for appellant.
Howard R. Relin, District Attorney of Monroe County, Rochester (Robert Alan Mastrocola of counsel), for respondent.
GREEN, J. P., HAYES, KEHOE and LAWTON, JJ., concur.
OPINION OF THE COURTPer Curiam.
Defendants appeal from judgments of conviction entered upon their negotiated guilty pleas. The plea agreement in each case included a sentencing promise from County Court, conditioned upon the defendant's cooperating with the Probation Department in the preparation of a presentence investigation report and being truthful with the court and the Probation Department. On appeal, defendants challenge the enhancement of their sentences based upon their violation of one or more of those conditions. We conclude in all four cases that the violation of those conditions does not warrant the additional punishment imposed by the court.
I PEOPLE v PARKERDefendant agreed to enter an Alford plea (see, North Carolina v Alford, 400 US 25) to the charge of sodomy in the first degree (Penal Law § 130.50 [3]) with the understanding that he would receive a sentence of incarceration of 2 to 6 years. As part of the plea agreement, defendant signed a form entitled "Waiver of Rights by Pleading Guilty" (waiver form). In light of the Alford plea, the items containing admissions that defendant committed a crime and engaged in culpable behavior were
[271 A.D.2d 65]
stricken from the waiver form. The waiver form states that defendant agrees to "cooperate with the Probation Department in the preparation of a Pre-Sentence Investigation Report" and "truthfully answer all questions asked of [him] by the Probation Department." The waiver form further provides that, if defendant fails to comply with the stated conditions, the sentencing court is not bound by any promises and defendant will not be permitted to withdraw the plea. During the plea proceeding, defendant acknowledged that he had read and understood the waiver form before signing it. Defendant also advised the court that he understood that part of the waiver form providing that he was waiving his right to appeal.
At sentencing, the prosecutor asked the court to impose the agreed-upon sentence. The court determined, however, that defendant had violated the conditions of the plea agreement requiring him to cooperate with the Probation Department in the preparation of a presentence investigation report and to answer truthfully the questions asked of him by the Probation Department. In making that determination, the court relied upon the following statement by the probation officer who prepared the presentence investigation report: "The defendant refused to discuss the offense. He stated because he entered an Alford Plea in court, he thought it would be inappropriate to discuss the details of the offense with this investigator." The court imposed a sentence of incarceration of 8 1/3 to 25 years.
Following sentencing, defendant moved for resentencing, seeking a term of 2 to 6 years in accordance with the plea agreement. In an affidavit supporting the motion, defense counsel explained that, given the nature of an Alford plea, he had advised defendant not to discuss the details of the offense with the probation officer conducting the presentence investigation. The court denied the motion.
PEOPLE v CAMPBELLDefendant agreed to plead guilty to criminal sale of marihuana in the first degree (Penal Law § 221.55) and criminal possession of marihuana in the second degree (Penal Law § 221.25) with the understanding that he would receive a sentence of five years' probation. During the plea proceeding, the court advised defendant that its sentencing promise was conditioned, inter alia, upon defendant's answering the court's questions truthfully and answering the questions posed by the Probation Department truthfully during the course of the presentence investigation. The court further advised defendant
[271 A.D.2d 66]
that, if he violated those...
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