Summary
In Esposito, vacating the plea may well have resulted in dismissal of the charges because of the difficulty, if not inability, of the prosecution to locate the witnesses necessary for trial of the then stale indictments.
Summary of this case from People v. SelikoffOpinion
Argued May 31, 1973
Decided June 7, 1973
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MITCHELL D. SCHWEITZER, J.
Irving Anolik for appellant.
Frank S. Hogan, District Attorney ( Michael P. Stokhamer and Michael R. Juviler of counsel), for respondent.
MEMORANDUM. The order is reversed and the case remitted to Supreme Court, New York County, with a direction to resentence defendant to a term of four years. Under the circumstances found herein, it was erroneous as a matter of law when, upon defendant's sentencing, the court did not inform the defendant that the plea-bargaining agreement could not be kept. The court had an obligation to so advise the defendant. (Cf. People v. Granello, 18 N.Y.2d 823; People v. Farina, 2 N.Y.2d 454 -455.) Nor did the failure of the defendant to remind the court of the agreement that was struck spell out any waiver. It is well established that in order for a waiver to be effectively given, it must be intelligently and intentionally done so ( Johnson v. Zerbst, 304 U.S. 458, 464-465). The record establishes that no valid waiver was given by the defendant.
Chief Judge FULD and Judges BURKE, BREITEL, JASEN, GABRIELLI, JONES and WACHTLER concur.
Order reversed and the case remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein.