Opinion
11-18-2015
The PEOPLE, etc., respondent, v. Anibal CARRASQUILLO, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Gregory Musso on the brief), for respondent. REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, HECTOR D. LaSALLE, and BETSY BARROS, JJ.
Lynn W.L. Fahey, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Gregory Musso on the brief), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, HECTOR D. LaSALLE, and BETSY BARROS, JJ.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sciarrino, Jr., J.), rendered April 23, 2014, convicting him of attempted robbery in the third degree, upon his plea of guilty, and sentencing him to an indeterminate term of imprisonment of 2 to 4 years.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
The defendant pleaded guilty to attempted robbery in the third degree in exchange for the Supreme Court's promise that it would sentence him to the agreed-upon indeterminate term of imprisonment of 1 1/2 to 3 years. As a condition of the court's promised sentence, the defendant agreed, inter alia, to cooperate with the Department of Probation (hereinafter the DOP). The defendant appeared for his interview with the DOP and answered all of the questions asked, but in his answers he denied his guilt. The defendant did not, however, express any intention to withdraw his guilty plea. At sentencing, the court found the defendant's denial of guilt to be a violation of the condition that he cooperate with the DOP, and imposed an enhanced sentence.
The defendant's challenge to the imposition of an enhanced sentence is unpreserved for appellate review, since he did not object to the sentence or move to withdraw his plea on that basis (see CPL 470.05[2]; People v. Zeldine, 121 A.D.3d 928, 929, 994 N.Y.S.2d 408; People v. Scoca, 38 A.D.3d 801, 832 N.Y.S.2d 604; People v. Godfrey, 33 A.D.3d 623, 822 N.Y.S.2d 135). However, we consider the matter in the exercise of our interest of justice jurisdiction. As the People correctly concede, the defendant's denial of his guilt to the DOP was not a violation of the condition that he cooperate with the DOP (see People v. Pianaforte, 126 A.D.3d 815, 816, 5 N.Y.S.3d 281; People v. Zeldine, 121 A.D.3d at 929, 994 N.Y.S.2d 408). While a court is free to impose a condition requiring a defendant not to deny his or her guilt when interviewed by the DOP, the Supreme Court did not impose such a condition here (see People v. Pianaforte, 126 A.D.3d at 816, 5 N.Y.S.3d 281; People v. Zeldine, 121 A.D.3d at 929, 994 N.Y.S.2d 408). Thus, the court erred in imposing an enhanced sentence based on its conclusion that the defendant violated a condition of the negotiated plea agreement (see People v. Pianaforte, 126 A.D.3d at 816, 5 N.Y.S.3d 281; People v. Zeldine, 121 A.D.3d at 929, 994 N.Y.S.2d 408).
Accordingly, we vacate the sentence imposed, and remit the matter to the Supreme Court, Kings County, for the purpose of imposing the originally promised indeterminate term of imprisonment of 1 1/2 to 3 years.