People v. Sumner
| Decision Date | 18 February 1988 |
| Citation | 137 A.D.2d 891,524 N.Y.S.2d 571 |
| Parties | The PEOPLE of the State of New York, Respondent, v. James J. SUMNER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Mitchell H. Spinac, Kingston, for appellant.
Michael Kavanagh, Ulster County Dist. Atty. (Joan Lamb, of counsel), Kingston, for respondent.
Before KANE, J.P., and CASEY, LEVINE, HARVEY and MERCURE, JJ.
Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered January 21, 1987, convicting defendant upon his plea of guilty of the crime of operating a motor vehicle while under the influence of alcohol, as a felony.
In February 1985, defendant was indicted on two counts of operating a motor vehicle while under the influence of alcohol, as a felony, and one count of operating a motor vehicle while license is revoked. In June 1985, defendant accepted a plea bargain which permitted him to plead guilty to one count of operating a motor vehicle while under the influence of alcohol in exchange for a sentence of six months' incarceration in the Ulster County Jail, five years' probation, a $750 fine and temporary revocation of his license. Defendant absconded prior to sentencing and remained a fugitive for approximately 18 months. After he was apprehended, defendant appeared for sentencing on January 21, 1987. At that time County Court informed defendant that, in light of the fact that he had absconded, it no longer felt bound by its prior sentencing promise. Defense counsel then moved to withdraw the guilty plea. County Court denied the motion and sentenced defendant to an indeterminate term of 1 to 3 years' imprisonment. This appeal ensued.
On appeal, defendant contends that County Court erred in refusing either to give the sentence promised as part of the plea bargain or to permit defendant to withdraw his plea. We agree. Where, as here, there is nothing in the record to support an inference that the sentencing commitment was conditioned upon defendant's appearance on the date scheduled for sentencing, the court could not impose a sentence greater than the one bargained for without first affording defendant the opportunity to withdraw his plea ( see, People v. Esposito, 32 N.Y.2d 921, 923, 347 N.Y.S.2d 70, 300 N.E.2d 438; compare People v. Green, 121 A.D.2d 858, 859, 501 N.Y.S.2d 52 and People v. Annunziata, 105 A.D.2d 709, 481 N.Y.S.2d 148 with People v. McDaniels, 111 A.D.2d 876, 877, 490 N.Y.S.2d 597 and People v. Chevalier...
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