People v. Elliot

Full title: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROBERT ELLIOT…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: May 16, 1994

204 A.D.2d 565 (N.Y. App. Div. 1994)

612 N.Y.S.2d 173

Opinion

May 16, 1994

Appeal from the Supreme Court, Kings County (Beldock, J.).

Ordered that the judgments are reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

The transcript of the defendant's pleas of guilty does not indicate that he was informed that he would be subjected to an enhanced sentence and would not be permitted to withdraw his pleas in the event that he failed to cooperate in the prosecution of a codefendant. Under these circumstances, the court could not impose an enhanced sentence for a violation of this condition without first affording the defendant an opportunity to withdraw his pleas and stand trial (see, Innes v. Dalsheim, 864 F.2d 974, cert denied 493 U.S. 809; see generally, People v. Arbil C., 190 A.D.2d 856; People v. White, 144 A.D.2d 711; cf., People v Johnson, 187 A.D.2d 532; People v. Gibbs, 161 A.D.2d 661). Accordingly, we remit the matter to the Supreme Court so that it may either impose the sentence originally promised or permit the defendant an opportunity to withdraw his pleas rather than receive an enhanced sentence. In this regard, we further note that at sentencing the defendant challenged the constitutionality of a prior conviction set forth in the People's predicate felony statement. Should this issue arise again, the court should conduct an inquiry into the matter and, if warranted, afford the defendant an opportunity to adduce evidentiary support for his claim (see generally, CPL 400.21; People v. Chestnut, 188 A.D.2d 480; People v. Davis, 144 A.D.2d 688). Sullivan, J.P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.