People v. Taylor
| Decision Date | 28 September 1978 |
| Citation | 64 A.D.2d 998,408 N.Y.S.2d 835 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Rodney TAYLOR, Appellant. |
| Court | New York Supreme Court — Appellate Division |
L. John Salzmann, Kingston, for appellant.
E. Michael Kavanagh, Ulster County Dist. Atty., Kingston (Edward M. P. Greene, Kingston, of counsel), for respondent.
Before SWEENEY, J. P., and STALEY, MAIN, MIKOLL and HERLIHY, JJ.
MEMORANDUM DECISION.Appeal from a judgment of the County Court of Ulster County, rendered February 9, 1978, convicting defendant on his plea of guilty of the crime of burglary in the third degree.
Defendant was arrested on October 9, 1974, and on December 20, 1974 he was indicted and charged with burglary in the third degree and attempted grand larceny in the third degree. He was also arrested on August 14, 1975 and charged with burglary in the third degree and criminal possession of a controlled substance in the seventh degree. He was arraigned on these charges in the City Court of the City of Kingston, and on August 19, 1975 was ordered held for the Grand Jury.
On June 9, 1976, defendant entered a plea of guilty to burglary in the third degree in full satisfaction of the indictment and in full satisfaction of an asserted other indictment which was not produced to the court. At the time this plea was made, the court was advised that there was a commitment by the District Attorney's Office that at the time of sentencing no recommendation nor statement whatsoever would be made with regard to the sentence to be imposed, and that matter would be left entirely to the discretion of the court.
On June 7, 1977, defendant moved to vacate his plea of guilty on the ground that he had been misled at the time it was entered into believing that there were two indictments pending against him and that subsequent to entering this plea he had ascertained there was only one indictment pending and that the District Attorney was not going to abide by his promise not to make a recommendation at sentencing. This motion was denied based upon the affidavit of an Assistant District Attorney stating that the second burglary charge had not been submitted to the Grand Jury in reliance on defendant's plea and, further, that the prosecution would honor its promise not to make a sentence recommendation.
On February 9, 1978, defendant was sentenced to an indeterminate term of six years, with a minimum term of two years. At the time of sentencing, the Assistant District Attorney, who had made the affidavit in opposition to the motion to vacate the plea of guilty, made a lengthy and detailed statement as to defendant's prior criminal record and recommended that the court incarcerate defendant for the maximum period allowed by law. The defendant objected to this statement referring to the proceedings at the time of entry of the plea of guilty and to the affidavit on the motion. After the arguments, the court imposed the above sentence.
Defendant now contends that the willful breach by the District Attorney of his promise not to make a recommendation as to sentence and the misrepresentation by the prosecution as to the existence of a second indictment pending to induce a guilty plea are unduly...
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