People v. Miller
| Decision Date | 24 January 1972 |
| Citation | 38 A.D.2d 745,329 N.Y.S.2d 762 |
| Parties | The PEOPLE, etc., Respondent, v. Louis MILLER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Eugene Gold, Dist. Atty., Kings County, for respondent; Martin I. Saperstein, Asst. Dist. Atty., of counsel.
Robert Kasanof, New York City, for appellant; Diane A. Lebedeff, New York City, of counsel.
Before MARTUSCELLO, Acting P.J., and LATHAM, CHRIST, BRENNAN and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 26, 1971, convicting him of robbery in the second degree, upon his plea of guilty, and sentencing him to a prison term of three years.
Judgment reversed, on the law and in the interests of justice, and case remanded to the Criminal Term for proceedings not inconsistent with the views herein set forth.
Prior to accepting defendant's plea of guilty, the Trial Judge informed him he would consider the possibility of giving him a maximum three-year jail term to run concurrently with the time he owed on a prior reformatory term. The Judge stated further that defendant could withdraw his plea if, after reading the probation report, the Judge found he could not sentence defendant as tentatively promised. Subsequently, defendant pleaded guilty and was sentenced in accordance with the promise made by the Judge.
The court which imposed sentence did so without knowledge of paragraph (c) of subdivision 2 of section 75.10 of the Penal Law, which prevented fulfillment of the sentence promise made to defendant.
Section 75.10 (subd. 2, par. (c)) of the Penal Law specifically states that 'when a person who is subject to a reformatory sentence of imprisonment imposed at a previous time is convicted of an additional crime in a court of this state and is sentenced therefor to a term of imprisonment in excess of one year, the reformatory sentence shall be affected in the following manner: * * * (ii) if the reformatory sentence was imposed for a felony, the state board of parole shall fix a termination date for the reformatory sentence, and the amount of time that remains to be served to satisfy such termination date shall be added to the maximum term of the new sentence to arrive at an aggregate maximum term.'
At the time of commission of the instant offense, defendant was on parole from Elmira Reception Center with time owed until October 28, 1972, upon a sentence resulting from the commission of a felony.
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