Opinion
2013-04-11
The PEOPLE of the State of New York, Respondent, v. Marc SECK, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret Knight of counsel), and Fried, Frank, Harris, Shriver & Jacobson LLP, New York (David S. Yellin of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David C. Bornstein of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret Knight of counsel), and Fried, Frank, Harris, Shriver & Jacobson LLP, New York (David S. Yellin of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David C. Bornstein of counsel), for respondent.
GONZALEZ, P.J., FRIEDMAN, ABDUS–SALAAM, ROMÁN, CLARK, JJ.
Judgment, Supreme Court, New York County (John Cataldo, J. at initial plea of guilty; Ronald A. Zweibel, J. at second plea of guilty and sentencing), rendered May 19, 2011, convicting defendant of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of one year, unanimously affirmed.
When defendant entered a second guilty plea and accepted the new sentence provided under that plea agreement, defendant waived his claim that he was entitled to specific performance of his initial plea agreement ( see People v. Jimenez, 227 A.D.2d 356, 643 N.Y.S.2d 87 [1st Dept. 1996], lv. denied88 N.Y.2d 987, 649 N.Y.S.2d 394, 672 N.E.2d 620 [1996] ). As an alternate holding, we reject defendant's claim.
The sentencing court, which had presided over this case nearly from its outset, had repeatedly rejected defendant's requests for a disposition involving youthful offender treatment. However, another Justice who briefly presided over the case accepted a plea, over the People's objection, that would have entitled defendant to YO treatment and probation if he met certain conditions. When that Justice retired a few months later, the case returned to the original Justice for sentencing. The court vacated the plea, and defendant ultimately agreed to a new disposition.
The sentencing court properly exercised its discretion in vacating the original plea, since it retained discretion to set an appropriate sentence up until the time of sentencing, and it “sufficiently demonstrated in the record that proper sentencing criteria counseled imposition of a different sanction than that agreed to initially” ( People v. Schultz, 73 N.Y.2d 757, 758, 536 N.Y.S.2d 46, 532 N.E.2d 1274 [1988] ) by the other Justice. The fact that defendant took part in a rehabilitation program was not the type of detrimental reliance that would entitle him to specific performance of the original plea bargain as a matter of fairness ( see People v. Danny G., 61 N.Y.2d 169, 473 N.Y.S.2d 131, 461 N.E.2d 268 [1984] [testifying for prosecution]; People v. McConnell, 49 N.Y.2d 340, 425 N.Y.S.2d 794, 402 N.E.2d 133 [1980] [same] ).
We perceive no basis for granting youthful offender treatment as a matter of discretion in the interest of justice.