From Casetext: Smarter Legal Research

People v. Sumner

Appellate Division of the Supreme Court of New York, Third Department
Feb 18, 1988
137 A.D.2d 891 (N.Y. App. Div. 1988)

Opinion

February 18, 1988

Appeal from the County Court of Ulster County (Vogt, J.).


In February 1985, defendant was indicted on two counts of operating a motor vehicle while under the influence of alcohol, as a felony, and one count of operating a motor vehicle while license is revoked. In June 1985, defendant accepted a plea bargain which permitted him to plead guilty to one count of operating a motor vehicle while under the influence of alcohol in exchange for a sentence of six months' incarceration in the Ulster County Jail, five years' probation, a $750 fine and temporary revocation of his license. Defendant absconded prior to sentencing and remained a fugitive for approximately 18 months. After he was apprehended defendant appeared for sentencing on January 21, 1987. At that time County Court informed defendant that, in light of the fact that he had absconded, it no longer felt bound by its prior sentencing promise. Defense counsel then moved to withdraw the guilty plea. County Court denied the motion and sentenced defendant to an indeterminate term of 1 to 3 years' imprisonment. This appeal ensued.

On appeal, defendant contends that County Court erred in refusing either to give the sentence promised as part of the plea bargain or to permit defendant to withdraw his plea. We agree. Where, as here, there is nothing in the record to support an inference that the sentencing commitment was conditioned upon defendant's appearance on the date scheduled for sentencing, the court could not impose a sentence greater than the one bargained for without first affording defendant the opportunity to withdraw his plea (see, People v Esposito, 32 N.Y.2d 921, 923; compare, People v Green, 121 A.D.2d 858, 859, and People v Annunziata, 105 A.D.2d 709 [plea bargain enforced in absence of condition not to abscond], with People v McDaniels, 111 A.D.2d 876, 877, and People v Chevalier, 92 A.D.2d 944 [greater sentence permitted where plea bargain, expressly conditioned upon appearance at sentencing]). As for defendant's remedy, we accept the People's representation on appeal that it would be prejudicial to permit defendant to withdraw his plea at this time and proceed to trial on the now-stale indictment. Accordingly, we reverse and remit the matter for resentencing in conformity with the original promise made by the court (see, People v Annunziata, supra).

Judgment modified, on the law, by vacating the sentence; matter remitted to the County Court of Ulster County for resentencing in accordance with this court's decision; and, as as modified, affirmed. Kane, J.P., Casey, Levine, Harvey and Mercure, JJ., concur.


Summaries of

People v. Sumner

Appellate Division of the Supreme Court of New York, Third Department
Feb 18, 1988
137 A.D.2d 891 (N.Y. App. Div. 1988)
Case details for

People v. Sumner

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES J. SUMNER…

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

Date published: Feb 18, 1988

Citations

137 A.D.2d 891 (N.Y. App. Div. 1988)

Citing Cases

People v. Webster

Defendant appeals, contending that County Court abused its discretion and that the sentence is harsh and…

People v. Velez

Although the court's warning was somewhat elliptical, the defendant's understanding of it can readily be…