Opinion
October 17, 1995
Appeal from the Supreme Court, New York County (James Leff, J.).
Respondent Leff exceeded his judicial authority in vacating, sua sponte, petitioner's legally entered plea where there was no new evidence, fraud, or clerical error to justify vacatur, and where petitioner did not consent to withdrawal of the plea ( Matter of Crooms v. Corriero, 206 A.D.2d 275, lv denied 84 N.Y.2d 809). Contrary to respondents' assertions, the record indicates that at the time of the plea, no issues remained concerning petitioner's competence to stand trial and the court was fully aware of the nature and extent of petitioner's criminal history. Consequently the presentence report did not provide a basis for vacatur and, in any case, the record indicates that it was reviewed by the court after the decision was made to vacate the plea.
The cases cited by respondents as authority for denying petitioner specific performance of the plea agreement are inapposite. In People v. Selikoff ( 35 N.Y.2d 227, cert denied 419 U.S. 1122), the three cases decided were factually distinct from the case at bar. People v. McConnell ( 49 N.Y.2d 340) is supportive of petitioner's position, holding not only that the defendant was entitled to specific performance because he had fulfilled his commitment to testify pursuant to the plea agreement, but also that new evidence emerging from trial that the defendant had stabbed the decedent was not significant enough to warrant refusal to sentence the defendant as promised. Respondents' reliance on People v. Schultz ( 73 N.Y.2d 757) is misplaced since, despite that Court's holding that a Judge retains discretion in fixing an appropriate sentence up to the time of sentencing, it also cites with approval McConnell ( supra). McConnell, like Crooms ( supra, at 276), indicates that such discretion is not absolute, noting ( supra, at 349) that the power to deny specific performance should be balanced against "the detrimental effect on the criminal justice system that will result should it come to be believed that the State can renege on its plea bargains with impunity".
Concur — Murphy, P.J., Sullivan, Ellerin, Williams and Mazzarelli, JJ.