Opinion
July 24, 1997
Appeal from the Supreme Court, Bronx County (John Collins, J.).
We find that, under all the circumstances, defendant's decision to plead guilty was not materially affected by any misinformation he received as to the possible scope of sentencing in the event of a conviction after trial ( see, People v. Jordan, 215 A.D.2d 257, lv denied 87 N.Y.2d 847; People v. Durran, 210 A.D.2d 34, 35, lv denied 84 N.Y.2d 1031; People v. Martinez, 162 A.D.2d 274, 275, lv denied 76 N.Y.2d 860).
The record, including the commitment sheet, establishes that the court properly imposed sentence with the aid of a pre-sentence report.
Concur — Nardelli, Williams and Andrias, JJ.
I believe that, on the record before us, the guilty plea entered by defendant was not knowing and voluntary because he was repeatedly misinformed as to the maximum exposure he faced after trial. A brief plea discussion in the midst of jury selection reveals that the People had recommended a sentence of from 10 to 20 years, while the court had indicated it was prepared to impose a sentence of 8 to 16 years if defendant pled guilty. Counsel noted for the record that he had explained to his client that the maximum sentence on the top counts of the indictment was 12 1/2 to 25 years; however, he explicitly stated that he also had advised his client of the possibility of an additional, consecutive term for the firearm used in the crimes charged, a term that could be as much as 7 1/2 to 15 years. Counsel then stated that he had pointed out to his client that the total maximum exposure he faced after trial was thus 20 to 40 years. The court noted that the co-defendant had received a sentence of 12 1/2 to 25 years, and that the offer to defendant was thus less than what his co-defendant had received and "considerably less" than the maximum he faced.
Defendant rejected the offer at this juncture but pleaded guilty after jury selection was completed. Prior to the plea colloquy, counsel repeated his understanding of the maximum exposure, including the possibility of a consecutive term for the weapon charge, while the court, after counsel's statement to this effect, noted that the promised 8 to 16 years was "a bargain" considering the charges and possible penalty after trial. Yet again, at sentencing, when defendant attempted to withdraw his plea, counsel stated that defendant could have received consecutive time for the weapon charge, and that the "potential penalties" faced after trial were "substantially greater" than even the People's offer (10 to 20 years).
It is undisputed on appeal that in fact defendant could not have received a consecutive sentence for the weapon charge, and therefore his maximum exposure after trial was not 20 to 40 years but 12 1/2 to 25 years. Under the circumstances, it cannot be assumed that he would have accepted the promised sentence had he been accurately informed regarding the maximum possible sentence. The difference between the incorrect maximum he was told, the actual maximum and the promised sentence is such that, in my opinion, it had a misleading effect on defendant's decision to enter a plea ( see, e.g., People v. Hurd, 220 A.D.2d 454; People v Norman, 220 A.D.2d 537). The difference between 20 to 40 and 8 to 16 (the "bargain" promised), as compared to the difference between 12 1/2 to 25 and 8 to 16, is not as negligible as the differences in the cases cited by the People, where it can be said that the mistaken information did not affect defendant's decision to plead guilty in exchange for what was, when viewed in context, a substantially reduced sentence (e.g., People v. Jordan, 215 A.D.2d 257, lv denied 87 N.Y.2d 847 [sentence of 8 to 16 years imposed, where correct maximum was 32 1/2 to 65 years, not 37 1/2 to 75 years]; People v. Durran, 210 A.D.2d 34, lv denied 84 N.Y.2d 1031 [defendant promised 15 years to life, where correct maximum was 41 2/3 to life, not 75 years to life]; People v. Martinez, 162 A.D.2d 274, lv denied 76 N.Y.2d 860 [sentence of 3 to 6 years imposed where actual maximum was 3 1/2 to 7 years, not 4 1/2 to 9 years, but sentence to run concurrently with a term of 12 years to life]). I find it disingenuous on the part of the People to argue that the length of the sentence promised by the court was not an inducement to plead guilty, where the record suggests to the contrary that it was a most significant inducement.