People v. Rodriguez

• Decision Date: 06 October 1988
• Citation: 536 N.Y.S.2d 928,142 Misc.2d 403
• Parties: The PEOPLE of the State of New York, v. Rubin RODRIGUEZ, Defendant.
• Court: New York Supreme Court

Page 928

536 N.Y.S.2d 928

142 Misc.2d 403

The PEOPLE of the State of New York, v. Rubin RODRIGUEZ, Defendant.

Supreme Court, Bronx County Criminal Term, Part 46.

Oct. 6, 1988.

Paul Gentile, Dist. Atty. and Raymond Vallejo, Asst. Dist. Atty., Bronx, for people.

Robert Koppelman, New York City, for defendant.

PHYLIS SKLOOT BAMBERGER, Justice:

This Court, after a hearing, grants a motion to vacate a sentence. C.P.L. § 440.20. The sentence of three and one-third to ten years imprisonment, imposed on petitioner on October 24, 1972, pursuant to a plea of guilty, failed to fulfill a sentence promise of "zip to ten." The "zip to ten" sentence was an authorized term at the time sentence was imposed, however the correction in sentence could not be made until this time because petitioner was a fugitive.

The remaining question is the relief to be granted petitioner. Prior to the filing of this opinion, and therefore without knowledge as to whether this Court would find the existence of a sentence promise or whether it was unfulfilled, the parties advised the Court they had agreed to an imposition of a term of two to six years imprisonment. Now that the Court has found an unfulfilled sentence promise, this Court has considered the proposed new agreement but rejects the sentence newly agreed upon by counsel.

When fashioning an appropriate remedy, "the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society." People v. Kelly, 62 N.Y.2d 516, 520, 478 N.Y.S.2d 834, 467 N.E.2d 498 (1984); People v. Tindle, 61 N.Y.2d 752, 472 N.Y.S.2d 919, 460 N.E.2d 1354 (1984). In accord with this principle, the remedy for the failure to fulfill a sentence promise has been either to permit withdrawal of the plea, or to impose the promised sentence. The matter is left for the trial court's discretion in consideration of the circumstances of the case. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); People v. Torres, 45 N.Y.2d 751, 408 N.Y.S.2d 487, 380 N.E.2d 313 (1978); People v. Selikoff, 35 N.Y.2d 227, 239-40, 360 N.Y.S.2d 623, 318 N.E.2d 784 (1974), cert. den., 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 (1975), explaining People v. Esposito, 32 N.Y.2d 921, 347 N.Y.S.2d 70, 300 N.E.2d 438 (1973); People v. Carter, 134 Misc.2d 878, 885, 513 N.Y.S.2d 331 (Sup.Ct.Kings Cty.1987). The trial court must determine which remedy restores the defendant to his presentence position, without enhancing it, while preventing prejudice to other participants in the process. People v. Torres, 67 N.Y.2d 766, 500 N.Y.S.2d 1039, 491 N.E.2d 296 (1986); People v. Tindle, supra; People v. Santobello, 39 A.D.2d 654, 331 N.Y.S.2d 776 (1st Dept.1972). See, e.g., People v. Pinaud, 132 A.D.2d 580, 517 N.Y.S.2d 560 (2d Dept.1987), lv. den., 70 N.Y.2d 802, 522 N.Y.S.2d 120, 516 N.E.2d 1233 (1987); People v. Carter, 134 Misc.2d at 885-86, 513 N.Y.S.2d 331. A remedy which goes beyond what is necessary to accomplish the purpose of the relief is an abuse of discretion. See People v. Kelly, supra, 62 N.Y.2d 516, 478 N.Y.S.2d 834, 467 N.E.2d 498.

Here, the purpose of the remedy is the fulfillment of the promise; to restore the defendant to the position that he would have been in if the promise his...