People v. Donnelly
| Decision Date | 06 January 2011 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Charles DONNELLY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
80 A.D.3d 797
The PEOPLE of the State of New York, Respondent,
v.
Charles DONNELLY, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
Jan. 6, 2011.
Martin J. McGuinness, Glens Falls, for appellant.
Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.
Before: PETERS, J.P., SPAIN, ROSE, LAHTINEN and McCARTHY, JJ.
McCARTHY, J.
Appeal from a judgment of the County Court of Greene County (Lalor, J.), rendered April 28, 2009, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.
Defendant pleaded guilty to a superior court information charging him with burglary in the third degree and waived his right to appeal. The People agreed, as part of the plea bargain, to recommend a sentence of 1 1/3 to 4 years in prison. County Court indicated that it would impose that recommended prison sentence unless the court was "surprised by something" or defendant got "in trouble between now and the sentencing date." The court then asked defendant if "anybody made any other promises" to induce his guilty plea, and he responded that they had not.
At sentencing, the People expressed concern that defendant
Initially, although defendant has been released from prison, his appeal is not moot given that he remains on parole ( see People v. Hastings, 24 A.D.3d 954, 956 n., 805 N.Y.S.2d 702 [2005] ). Additionally, defendant's waiver of appeal does not preclude his argument concerning County Court's enhancement of his sentence beyond the terms of the plea agreement ( see People v. Armstead, 52 A.D.3d 966, 967, 859 N.Y.S.2d 506 [2008] ). This issue is unpreserved, however, due to defendant's failure to move to withdraw the plea or vacate the judgment of conviction ( see id.). Despite this failure, we exercise our interest of justice jurisdiction to take corrective action. By recommending a sentence greater than agreed, the People failed to honor their promise under the plea agreement, thereby depriving defendant of part of his bargain ( see Santobello v. New York, 404 U.S....
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