People v. Annunziata
| Decision Date | 05 November 1984 |
| Parties | The PEOPLE, etc., Respondent, v. Carmine ANNUNZIATA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Mark P. Isaacs, Valley Stream, for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (David M. Berck, Fresh Meadows, of counsel), for respondent.
Before GIBBONS, J.P., and O'CONNOR, WEINSTEIN and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered March 30, 1984, convicting him of robbery in the second degree, upon his plea of guilty, and sentencing him to an indeterminate term of imprisonment of four to twelve years.
Judgment modified, on the law, by reducing the sentence imposed to an indeterminate term of imprisonment of three to nine years. As so modified, judgment affirmed.
Defendant's plea of guilty was entered upon the court's promise that it would impose a maximum sentence of nine years. Prior to sentencing, however, defendant fled the jurisdiction and was not returned to New York until over two years later. Upon his return, defendant moved to withdraw his previously entered guilty plea. In light of the unsupported claims of innocence in the moving papers, the court properly denied the motion (see People v. Dixon, 29 N.Y.2d 55, 323 N.Y.S.2d 825, 272 N.E.2d 329; People v. Fridell, 93 A.D.2d 866, 461 N.Y.S.2d 375). Nevertheless, instead of imposing the sentence originally promised, the court, claiming it was no longer bound by that promise, sentenced defendant to a prison term of four to twelve years. This was error.
It is fundamental that the sentencing court may not impose a sentence greater than the one bargained for without first affording an opportunity to withdraw the plea and stand trial (see People v. Farrar, 52 N.Y.2d 302, 437 N.Y.S.2d 961, 419 N.E.2d 864; People v. McConnell, 49 N.Y.2d 340, 425 N.Y.S.2d 794, 402 N.E.2d 133; People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784, cert. den. 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822). This is so even though defendant failed to appear for sentencing and had to be apprehended to obtain his subsequent appearance (see People v. Esposito, 32 N.Y.2d 921, 347 N.Y.S.2d 70, 300 N.E.2d 438; People v. Johnson, 48 A.D.2d 643, 368 N.Y.S.2d 26). Since the indictment under which this prosecution arose is now more than three years old, however, it would prejudice the People to allow the defendant to withdraw his plea and go to trial (see...
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