People v. Hoeltzel

• Decision Date: 03 January 2002
• Docket Number: 12382,3
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v BRYCE W. HOELTZEL, Appellant. 12382 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

THE PEOPLE OF THE STATE OF NEW YORK, Respondent v BRYCE W. HOELTZEL, Appellant

12382

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: November 13, 2001

Decided and Entered: January 3, 2002

Ralph Cherchian, Albany, for appellant.

Ronald J. Briggs, District Attorney (Mark E. Anderson of counsel), Elizabethtown, for respondent.

MEMORANDUM AND ORDER

Before: Cardona, P.J., Peters, Spain, Mugglin and Lahtinen, JJ.

Spain, J.

Appeal from a judgment of the County Court of Essex County (Halloran, J.), rendered February 29, 2000, convicting defendant upon his plea of guilty of the crime of sexual abuse in the first degree.

Pursuant to a negotiated plea agreement which included a waiver of the right to appeal, defendant pleaded guilty to the crime of sexual abuse in the first degree in satisfaction of the charges against him. As part of the bargain, the People agreed, on the record, to recommend a sentence of six months in jail and five years' probation. County Court instructed defendant that it was making no commitment regarding sentencing. At the time of sentencing, however, the People asserted to the court that in light of the information contained in the presentence investigation, they would not adhere to their promise to recommend the negotiated sentence and proceeded instead to urge that a State prison sentence be imposed. Defense counsel objected to the prosecutor's conduct in reneging on the promise to make a specific sentencing recommendation. In light of the prosecutor's comments, the court offered defendant the opportunity to move to withdraw his plea but, after conferring with his attorney, defendant declined to do so and elected to proceed with sentencing. County Court then sentenced defendant to a determinate term of four years in prison. Defendant appeals asserting, inter alia, that the People's failure to adhere to the promised sentencing recommendation requires that his sentence be vacated and the matter be remitted for resentencing before a different Judge.

While waivers of appeal are generally enforceable (see, People v Hidalgo, 91 N.Y.2d 733, 735; People v Seaberg, 74 N.Y.2d 1, 11-12), we cannot agree with the People's contention that defendant's waiver of appeal -- which occurred during the plea proceeding as part of a negotiated plea -- precludes consideration on appeal of defendant's claims addressed to the People's subsequent conduct at the sentencing proceeding, i.e., their postplea violation of the terms of the negotiated plea agreement. That is, defendant did not "knowingly" waive, as part of the plea, his right to challenge on appeal the People's unanticipated change in position and their comments to County Court at sentencing reneging on the plea agreement; thus, we hold that defendant's waiver of appeal does not encompass his right to challenge the sentencing which followed the prosecutorial violation of that agreement (see, People v Seaberg, supra; People v Covell, 276 A.D.2d 824, 826; cf., People v Hidalgo, supra).

Turning to the merits, it is well settled that "a prosecutor must honor a promise with respect to a sentencing recommendation made during plea negotiations" (People v Oakes, 252 A.D.2d 661, 663; see, Santobello v New York, 404 US 257; People v Tindle, 61 N.Y.2d 752; People v Stripling, 136 A.D.2d 772, 773). The People's contentions to the contrary notwithstanding, no plausible argument can be made that the People did not violate the promise -- made to induce defendant's plea -- to recommend a specific sentence. In an established line of cases, the appellate courts of this State have recognized that where, as here, the People violate a plea inducing promise to recommend a particular sentence (or to make no sentencing recommendation), the defendant is entitled to vacatur of the sentence and remittal for resentencing before a different Judge to avoid any possible prejudice from the recommendation made at the original sentencing, and to an order directing the prosecutor to abide by the promise (see, People v Torres, 67 N.Y.2d 659; People v Tindle, supra, at 754; People v Oakes, supra, at 663; People v Jasiewicz, 192 A.D.2d 999; People v Linares, 174 A.D.2d 847, 847, lv denied 78 N.Y.2d 969; People v Muller, 174 A.D.2d 838, 839; People v Felman, 137 A.D.2d 341, 343-344; People v Raucci, 136...