People v. Sierra

• Decision Date: 17 June 2011
• Docket Number: 641 KA 08-00027
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. SAMUEL SIERRA, DEFENDANT-APPELLANT.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 05302

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
SAMUEL SIERRA, DEFENDANT-APPELLANT.

641 KA 08-00027

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

Entered: June 17, 2011

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.

Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.), rendered November 5, 2007. The judgment convicted defendant, upon a jury verdict, of manslaughter in the second degree, vehicular manslaughter in the second degree, aggravated unlicensed operation of a motor vehicle in the first degree, driving while intoxicated (two counts), and a traffic infraction.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, manslaughter in the second degree (Penal Law § 125.15 [1]). Defendant initially pleaded guilty to the indictment with a sentencing commitment of a term of imprisonment of 4½ to 9 years. After County Court (Connell, J.) accepted the plea, the People expressed their disagreement with that sentence. Judge Connell determined that he would not abide by the sentencing commitment and recused himself. The case was then assigned to a different County Court Judge (Egan, J.), and defendant withdrew the plea. We reject defendant's contention that Judge Connell abused his discretion in refusing to abide by the sentencing commitment of the plea agreement. "The court . . . retains discretion in fixing an appropriate sentence up until the time of sentencing" (People v Schultz, 73 NY2d 757, 758) and, in view of Judge Connell's explanation for his determination not to abide by the sentencing commitment, we cannot conclude that he abused his discretion (see generally id.). Contrary to the further contention of defendant, he is not entitled to specific performance of the plea agreement. "The remedy of specific performance in the context of plea agreements...