Opinion
No. 2013–1561 S CR.
04-09-2015
The PEOPLE of the State of New York, Respondent, v. Vincent ALFANO, Appellant.
Opinion
ORDERED that the amended judgment is reversed, on the law, the resentence is vacated, and the matter is remitted to the District Court for all further proceedings.
On May 14, 2013, defendant, pursuant to a negotiated agreement, admitted that he had violated his probation imposed upon his 2010 conviction of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03 ). The District Court indicated, among other things, that, as a result of his admission, defendant would be resentenced to 30 days of incarceration and placed back on probation. However, if he was arrested between the date of his plea and the scheduled sentencing date of June 11, 2013, the court would be free to sentence defendant to a term of incarceration of up to one year.
Defendant did not appear in court on the sentencing date. He was brought to court the next day, upon a bench warrant. The District Court resentenced defendant to a term of incarceration of one year based on his failure to meet with his probation officer on June 10, 2013 and to enter a substance abuse program.
The District Court improperly imposed an enhanced sentence of one year. The court had solely conditioned the agreed-upon sentence on defendant not being arrested prior to the sentencing date. The minutes of the plea proceeding do not indicate that the District Court informed defendant that he would be subject to an enhanced sentence if he did not cooperate with, and/or meet his obligations to, the Department of Probation between the date of his plea and the scheduled sentencing date.
Accordingly, the amended judgment is reversed, the resentence is vacated, and the matter is remitted to the District Court to either impose the negotiated resentence or afford defendant the opportunity to withdraw his plea and stand trial (see People v. Newson, 81 AD3d 984, 985–986 [2011] ; see also People v. Ignatowski, 70 AD3d 1472, 1473 [2010] ; People v. Muhammad, 47 AD3d 951, 951–952 [2008] ; People v. Ruiz, 309 A.D.2d 883 [2003] ; People v. Mazzamuto, 16 Misc.3d 129[A], 2007 N.Y. Slip Op 51285[U] [App Term, 9th & 10th Jud Dists 2007] ; cf. People v. Grant, 122 AD3d 767 [2014] ; People v. Scott, 101 AD3d 1773, 1773–1774 [2012] ; People v. Clarke, 31 AD3d 572, 573 [2006] ).
IANNACCI and GARGUILO, JJ., concur.
MARANO, P.J., taking no part.