People v Francis (Thomas)

[*1] People v Francis (Thomas) 2006 NY Slip Op 50733(U) [11 Misc 3d 142(A)] Decided on April 20, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 20, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and LIPPMAN, JJ
2004-509 N CR.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

THOMAS FRANCIS, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Steven M. Jaeger, J., plea; Sondra K. Pardes, J., sentence), rendered April 5, 2004. The judgment convicted defendant, upon his pleas of guilty, of assault in the third degree and disorderly conduct, and sentenced him to 90 days' incarceration and 15 days' incarceration respectively, said sentences to run concurrently.

Judgment of conviction modified on the law by vacating the sentences imposed and remanding the matter to the court below for resentencing following a hearing on the issue of whether defendant violated a post-plea condition of his bargained-for sentences; as so modified, affirmed.

At the time defendant pleaded guilty, he was promised that he would not be sentenced to a term of imprisonment on condition that he return to court on the date of sentencing, cooperate with the Probation Department in the preparation of a presentence report, and not be arrested or engage in any criminal conduct from the date of his pleas until the date of sentencing. It is conceded that defendant did not appear for sentencing on February 18, 2004. Defendant, being wheelchair bound, alleged that he appeared later that day due to transportation problems and that his failure to appear was beyond his control and not willful or intentional. The court refused defendant's request for a hearing and imposed sentences of incarceration. However, as the People concede, the failure to conduct a hearing as to the validity of the alleged noncompliance with the post-plea conditions violated defendant's right to due process (see People v Outley, 80 NY2d 702 [1993]; People v Parker, 271 AD2d 63 [2000], lv denied 95 NY2d 967 [2000]). Accordingly, the sentences must be vacated and the matter remanded for resentencing following [*2]a hearing on the issue of whether defendant violated a post-plea condition of his bargained-for sentences.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: April 20, 2006