People v. Lewis

• Decision Date: 27 September 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael F. LEWIS, Appellant.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 1186
951 N.Y.S.2d 594
2012 N.Y. Slip Op. 06323

The PEOPLE of the State of New York, Respondent,
v.
Michael F. LEWIS, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Sept. 27, 2012.

Lisa A. Burgess, Indian Lake, for appellant.

Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.

Before: MERCURE, J.P., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.

MERCURE, J.P.

[98 A.D.3d 1186]Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered January 19, 2010, convicting defendant upon his plea of guilty of the crimes of attempted burglary in the second degree and vehicular manslaughter in the second degree.

In satisfaction of two superior court informations and other filed charges, defendant pleaded guilty to attempted burglary in the second degree and vehicular manslaughter in the second degree and waived his right to appeal. Although no particular sentence was promised, County Court committed to run any sentences imposed concurrently to one another. Defendant was released to probation supervision prior to sentencing, but was thereafter arrested

[951 N.Y.S.2d 595]

for criminal contempt. Based on the arrest, County Court stated at sentencing that it was no longer bound by the plea agreement, and proceeded to sentence defendant to consecutive terms of imprisonment. Defendant appeals.

Defendant contends that County Court erred in imposing an enhanced sentence of consecutive prison terms without first affording him an opportunity to withdraw his plea. Although this issue is not precluded by a waiver of the right to appeal, defendant did not properly preserve it by moving to withdraw his plea or vacate the judgment of conviction ( see People v. Donnelly, 80 A.D.3d 797, 798, 914 N.Y.S.2d 385 [2011];People v. Armstead, 52 A.D.3d 966, 967, 859 N.Y.S.2d 506 [2008] ). We, nevertheless, exercise our interest of justice jurisdiction under the circumstances and vacate the sentence imposed.

“It is well settled that a sentencing court may not impose a sentence other than the one agreed to as part of the plea agreement unless it informs the defendant, at the time of the plea, of the possibility of an enhanced sentence if he or she fails to meet specific conditions or the defendant is given an opportunity to withdraw his or her plea” ( People v. Lindsey, 80 A.D.3d 1005, 1006, 914 N.Y.S.2d 782 [2011] [internal quotation marks and citations omitted]; see People v. Fisher, 76...