People v. Ulloa

• Decision Date: 10 December 2002
• Citation: 751 N.Y.S.2d 26,300 A.D.2d 60
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>JOSE ULLOA, Appellant.
• Court: New York Supreme Court — Appellate Division

300 A.D.2d 60

751 N.Y.S.2d 26

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.JOSE ULLOA, Appellant.

Decided December 10, 2002.

Concur — Tom, J.P., Saxe, Sullivan, Rosenberger and Lerner, JJ.

Defendant was charged with criminal possession of a weapon in the third degree arising from his possession of a loaded .357 handgun in a livery cab. On April 22, 1997, defendant, represented by assigned counsel, pleaded guilty as charged in exchange for a reduced sentence of five years of incarceration. The plea agreement was conditioned on defendant returning to court on the date scheduled for sentence and not being rearrested in the interim. The plea was further conditioned on a promise that if he appeared as scheduled and cooperated with the Department of Probation in preparation of the sentencing report, and that the report did not indicate to the contrary, he would be allowed to replead to attempted criminal possession of a weapon in the third degree in exchange for a three-year sentence. If the report indicated that a longer term was warranted, the court agreed to allow defendant to withdraw his plea and to proceed to trial.

At the plea proceeding, defendant indicated that he had discussed the plea with counsel, made his Boykin waivers and allocuted to the facts of the crime. Defendant also acknowledged that he was pleading guilty voluntarily. He admitted that he was, in fact, guilty. The court repeatedly warned defendant that the plea agreement was conditioned on his timely appearing for sentencing. Nevertheless, defendant failed to appear for sentencing on November 21, 1997, as scheduled, and subsequently was returned on a bench warrant almost two years later on August 19, 1999.

At the rescheduled sentencing proceeding, newly retained counsel appeared for defendant. Defendant's assigned counsel was on vacation and had requested an adjournment by fax. The court, noting that defendant was already represented, declined to accept retained counsel's notice of appearance unless defendant was prepared to be sentenced at that time. New counsel indicated that he intended to move to vacate defendant's plea. The court was willing to entertain a verbal motion, though counsel stated that the motion must be made in writing, and sought an adjournment to obtain the minutes. New counsel stated that defendant had indicated that assigned counsel had pressured him into taking the plea, and that he claimed to be innocent. Defendant now indicated an interest in withdrawing his plea. The court noted that defendant had acknowledged, in open court, the voluntariness of his plea and that, having been the court...