Summary
In People v De Wolfe (36 A.D.2d 618) the District Attorney indicated that he would accept a plea of guilty to a lesser included offense in full satisfaction of the indictment and recommend a sentence of not more than one year in jail if defendant testified for the People against two accomplices.
Summary of this case from People v. ToblerOpinion
February 1, 1971
Appeal by defendant from judgment of the Supreme Court, Suffolk County, rendered April 20, 1970, convicting him of attempted robbery in the third degree, upon a guilty plea, and sentencing him to an indeterminate sentence not to exceed four years. Judgment reversed, on the law and in the interests of justice, and case remanded to the trial court (1) for sentencing of defendant in accordance with the recommended sentence hereinbelow mentioned or (2) in the alternative to allow defendant to withdraw his plea of guilty. The District Attorney indicated to defendant that he would accept a plea of guilty of a lesser included offense in full satisfaction of the indictment and would recommend a sentence of not more than one year in the county jail, provided defendant testified on behalf of the People in its case against defendant's two accomplices. The Trial Judge indicated by his representations that he would follow the recommendation. Accordingly defendant entered a plea of guilty. The codefendants were never apprehended and appellant was never called upon to testify although he stood ready. Subsequently the Trial Judge sentenced defendant to an indeterminate sentence not to exceed four years. We feel that the bargain must reasonably be found to be in accordance with the recommended sentence, provided defendant remained ready to perform his part of the bargain. Consequently he should either be resentenced in accordance with the Trial Judge's representation or be permitted to withdraw his plea as one induced by a mistake of fact. Latham, Acting P.J., Shapiro, Brennan and Benjamin, JJ., concur.