Opinion
2015-10-22
The PEOPLE of The State of New York, Respondent, v. Jamil A. MUHAMMAD, Appellant.
Frank A. Sarat, Homer, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Frank A. Sarat, Homer, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Before: EGAN JR., J.P., ROSE, DEVINE and CLARK, JJ.
ROSE, J.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered July 2, 2013, convicting defendant upon his plea of guilty of the crime of falsifying business records in the first degree.
Defendant pleaded guilty to one count of falsifying business records in the first degree in satisfaction of a two-count indictmentand other pending and potential charges. When the plea was entered, County Court agreed to impose a prison sentence of 1 1/2 to 3 years and made further assurances that it would order defendant into a shock incarceration program ( seeCorrection Law § 865[2] ). Defendant was later sentenced, as a second felony offender, to a prison term of 1 1/2 to 3 years. At sentencing, however, the court stated that it opposed shock incarceration and refused to order it, giving rise to this appeal.
Defendant argues that his plea was involuntary because it was induced by County Court's unfulfilled promise to order that he be admitted into a shock incarceration program and that the court improperly imposed a sentence in violation of the plea agreement. Although defendant failed to preserve this argument by making an appropriate postallocution motion ( see People v. Neithardt, 127 A.D.3d 1502, 1503, 8 N.Y.S.3d 691 [2015]; People v. Smith, 123 A.D.3d 1375, 1376, 999 N.Y.S.2d 276 [2014], lv. denied26 N.Y.3d 935, 17 N.Y.S.3d 98, 38 N.E.3d 844 [2015] ), we will exercise our discretion to take corrective action in the interest of justice ( seeCPL 470.15[6] ).
We start with the principle that a trial court always “retains discretion in fixing an appropriate sentence up until the time of sentencing” (People v. Schultz, 73 N.Y.2d 757, 758, 536 N.Y.S.2d 46, 532 N.E.2d 1274 [1988] ). However, when the court wishes to depart from a promised sentence, it must either honor the promise or give the defendant the opportunity to withdraw the guilty plea ( see People v. McConnell, 49 N.Y.2d 340, 346, 425 N.Y.S.2d 794, 402 N.E.2d 133 [1980]; People v. Selikoff, 35 N.Y.2d 227, 241, 360 N.Y.S.2d 623, 318 N.E.2d 784 [1974], cert. denied419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 [1975] ). Accordingly, “[a] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” (People v. Collier, 22 N.Y.3d 429, 433, 982 N.Y.S.2d 34, 5 N.E.3d 5 [2013], cert. denied ––– U.S. ––––, 134 S.Ct. 2730, 189 L.Ed.2d 770 [2014] [internal quotation marks and citation omitted] ).
Here, prior to defendant's guilty plea, County Court indicated its belief that defendant was eligible for shock incarceration and then unequivocally promised that it “would order him into it.” When defendant specifically asked if shock incarceration was guaranteed, the court stated that it “would order it absolutely” and that a failure on the part of prison authorities to admit him would “defy an order of the [c]ourt.” Furthermore, defense counsel stated that he was recommending that defendant accept the plea agreement “especially with a shock commitment.” Thus, regardless of the fact that “neither County Court nor the People possessed the authority to guarantee [defendant's] participation” in the shock incarceration program (People v. Vanguilder, 32 A.D.3d 1110, 1110–1111, 821 N.Y.S.2d 492 [2006], lv. denied7 N.Y.3d 904, 826 N.Y.S.2d 613, 860 N.E.2d 75 [2006]; accord People v. Benson, 100 A.D.3d 1108, 1109 n., 953 N.Y.S.2d 380 [2012]; People v. Taylor, 284 A.D.2d 573, 574, 726 N.Y.S.2d 169 [2001], lv. denied96 N.Y.2d 925, 732 N.Y.S.2d 642, 758 N.E.2d 668 [2001] ), the record reflects that defendant, in accepting the plea, relied upon County Court's promise to do exactly that. Consequently, we find that defendant's plea was not knowing, voluntary and intelligent, and that, because County Court's promise to defendant cannot be honored as a matter of law, he is entitled to vacatur of his guilty plea ( see People v. Wiggins, 126 A.D.3d 1229, 1230–1231, 4 N.Y.S.3d 404 [2015]; compare People v. Benson, 100 A.D.3d at 1109, 953 N.Y.S.2d 380; People v. Williams, 84 A.D.3d 1417, 1417–1418, 924 N.Y.S.2d 539 [2011], lv. denied17 N.Y.3d 863, 932 N.Y.S.2d 28, 956 N.E.2d 809 [2011]; People v. Vanguilder, 32 A.D.3d at 1110–1111, 821 N.Y.S.2d 492).
ORDERED that the judgment is reversed, on the law, and matter remitted to the County Court of Broome County for further proceedings not inconsistent with this Court's decision. EGAN JR., J.P., DEVINE and CLARK, JJ., concur.