People v. Dunn

Decision Date05 November 1997
Citation667 N.Y.S.2d 877,175 Misc.2d 137
Parties, 1998 N.Y. Slip Op. 98,015 The PEOPLE of the State of New York, Plaintiff, v. Kevin DUNN, Defendant.
CourtNew York Supreme Court

Kenneth J. Aronson, New York City, for defendant.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Joycelyn Cole, of counsel), for plaintiff.



The defendant moved this court pursuant to CPL § 380.30(1) to dismiss the criminal charges pending against him on the ground that a delay of eighteen years between his plea of guilty on June 2, 1978 and return to court for sentencing on an outstanding warrant was unreasonable and resulted in the court's loss of jurisdiction over the defendant; in the alternative, for a fact-finding hearing on that issue; defendant further moved to be sentenced to probation as promised or to be permitted to withdraw his guilty plea; to declare the People's sentence recommendation of 3 1/2 to 7 years illegal, in violation of applicable guidelines; and to permit his mental health expert to examine the Probation Report. The People oppose the motion and recommend that defendant be sentenced to 3 1/2 to 7 years incarceration.


Defendant was indicted on April 26, 1978 for Rape in the First Degree and three (3) counts of Sexual Abuse in the First Degree for an incident which occurred on March 29, 1978. On June 2, 1978, before the Hon. Larry Vetrano, the defendant pleaded guilty to Sexual Abuse in the First Degree. Judge Vetrano stated on the record that "subject to reading a probation report ... I am going to consider placing you on probation for a period not to exceed five (5) years."

On September 14, 1978, the sentencing date, the defendant failed to appear and a bench warrant was issued.

Defendant's criminal history reports convictions in Texas in 1979 for Rape and Attempted Rape for which he was sentenced to seventeen (17) years and ten (10) years incarceration, respectively. He also pleaded guilty in Texas in 1986 to Sexual Assault and was sentenced to twelve (12) years. Defendant has a number of other arrests both prior to the instant guilty plea and during the period of absconsion. Moreover, defendant's RAP sheet reports multiple names or aliases used by subject, to wit, ROBERT WELCH, ROBERT B. WELSH, KEVIN BARRY DUNN, KEN TRAZARRAL; different NYSID numbers and social security numbers; three different dates of birth, as well as seven different residence addresses under different names in Brooklyn, Yonkers and New York City from 1975 through 1996; three different states, Oklahoma, New York and California, as place(s) of birth.

The defendant was returned to this court, on the open bench warrant, on December 18, 1996, following his arrest for Criminal Sale of a Controlled Substance in the Seventh Degree in New York County, on November 9, 1996.


Defendant requests that in the event the court cannot sentence defendant to the promise of 5 years probation, he be permitted to withdraw his guilty plea.

As a general rule, if a court is unwilling or unable to sentence defendant in accordance with a promise made as part of a plea bargain, the defendant will be permitted to withdraw the plea. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784 (1974).

Every disposition of criminal charges by guilty plea is implicitly conditioned upon the promised sentence being legal and appropriate in light of the pre-sentence report. People v. Selikoff, supra. If at the time of sentence the court determines that the promised sentence is inappropriate, then the defendant must be given the option to withdraw the plea and be returned to the same position he was in prior to pleading guilty, the status quo ante. This court is aware of the plethora of appellate court decisions which hold that "even though the defendant failed to appear for sentencing and was subsequently arrested, the sentencing court could not impose a sentence greater than that bargained for without first affording the defendant an opportunity to withdraw the plea and to stand trial." People v. Michael, 190 A.D.2d 758, 593 N.Y.S.2d 292 (2d Dept.1993). The court's inquiry and analysis must not and does not end there.

When the court's inability or unwillingness to impose the promised sentence is brought about by the misconduct of the defendant, the defendant will not be permitted to withdraw the plea if withdrawal places the defendant in a more advantageous position than he was in prior to pleading guilty. Courts have repeatedly held that defendants who manipulate and deceive the court will not be permitted to benefit by their misconduct. People v. Floyd, 177 A.D.2d 310, 576 N.Y.S.2d 228 (1st Dept.1991); People v. Barnes, 160 A.D.2d 342, 553 N.Y.S.2d 413 (1st Dept.1990); People v. DaForno, 73 A.D.2d 893, 424 N.Y.S.2d 195 (1st Dept.1980); People v. Simpson, 162 Misc.2d 480, 619 N.Y.S.2d 247 (Sup.Ct. Richmond Co.1994); People v. Lopez, 158 Misc.2d 208, 601 N.Y.S.2d 218 (Sup.Ct. Kings Co.1993). Clearly, if withdrawal of a plea would give a deceitful defendant an undue benefit, then to permit withdrawal would undermine the integrity of the plea negotiation process.

If defendant is permitted to withdraw his guilty plea he will receive a greater benefit than is appropriate. He would not be returned to status quo ante. His position would now be decisively more advantageous than it was at the time of the plea. The prejudice to the People would be irreparable. Eighteen (18) years have elapsed since the defendant was convicted of the instant offense. It is unlikely that the People will be able to produce the witnesses and proceed to trial on this indictment. It was the defendant's conduct in failing to return to court for sentence and fleeing to another state that prevented the court from imposing sentence and which nullified the option to permit the defendant to withdraw his guilty plea and proceed to trial. To grant the defendant's request would in effect enable him and permit him to effectively manipulate the criminal justice system in order to escape any consequence and punishment for the crimes charged in this indictment to have been committed by him on March 29, 1978, to wit, the forcible rape of a nineteen (19) year old woman, Debbie R., the defendant having pleaded guilty to Sexual Abuse in the First Degree, to wit, sexual contact by forcible compulsion.


Defendant contends that under the terms of the plea bargain he must be sentenced as promised or be permitted to withdraw his plea. The plea minutes bear out defendant's assertion that the court stated that if it could not impose the promised sentence, he would be given the opportunity to withdraw his plea of guilty.

The defendant also correctly points out that the court did not condition its promise on defendant's returning to court for sentence or inform defendant that he would be subject to increased punishment for failure to appear for sentence.

The Santobello-Selikoff Frederick doctrine (People v. Frederick, 45 N.Y.2d 520, 410 N.Y.S.2d 555, 382 N.E.2d 1332), sets forth the principles, objectives and parameters of our State's jurisprudence in the field of plea bargaining. This court, however, will not countenance the perversion or corruption of these rules of law, nor will it apply a myopic, superficial, or irrational analysis to them. The defendant may not be permitted to benefit from his own wrongdoing. The defendant himself has created the conditions which negate the viability of the option to withdraw his guilty plea and proceed to trial.

It is axiomatic that a defendant who pleads guilty must return to court for sentence. It is advisable to expressly admonish and warn all defendants after a guilty plea concerning the consequences of the failure to return to court for sentence. Each case however, must be adjudged on its own facts, on...

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