People v. Warren

• Decision Date: 06 June 1986
• Citation: People v. Warren, 503 N.Y.S.2d 580, 121 A.D.2d 418 (N.Y. App. Div. 1986)
• Parties: The PEOPLE, etc., Respondent, v. Orgetorix WARREN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 580

503 N.Y.S.2d 580

121 A.D.2d 418

The PEOPLE, etc., Respondent, v.Orgetorix WARREN, Appellant.

Supreme Court, Appellate Division Second Department.

June 6, 1986.

Sulkow, Birnbach & Jasilli, New York City(Howard R. Birnbach, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Debra W. Petrover, of counsel), for respondent.

Before LAZER, J.P., and BRACKEN, BROWN, LAWRENCE and KOOPER, JJ.

MEMORANDUM BY THE COURT.

On the court's own motion, its decision in the above-entitled case, dated May 27, 1986, is recalled and vacated, and the following decision is substituted:

Appeal by the defendant from a judgment of the Supreme Court, Kings County(Curci, J.), rendered June 28, 1984, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

Judgment affirmed.

The defendant contends that the sentencing court erred by not affording him an opportunity to withdraw his plea of guilty before imposing a higher sentence than that originally negotiated in the plea agreement.Although that is the usual rule (see, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427), it does not apply to the instant case.Taken as a whole, the record indicates the clear intent of the court to condition the promised sentence upon the defendant's appearance on the date scheduled for sentencing.Because the defendant absconded and failed to appear on the scheduled date, the court was no longer bound by its promise and was free to impose a higher sentence (see, People v. Gamble, 111 A.D.2d...