People v Gonzalez

[*1] People v Gonzalez 2006 NY Slip Op 51485(U) [12 Misc 3d 1188(A)] Decided on July 31, 2006 Supreme Court, Queens County Knopf, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 31, 2006
Supreme Court, Queens County

The People of the State of New York

against

Juan Gonzalez, Defendant



N11507/00

Stephen A. Knopf, J.

The Defendant, Juan Gonzalez, seeks an order from the courts to set aside his sentence pursuant to CPL §440.20 upon the ground that the defendant was not sentenced according to his pre-negotiated plea.

CPL §440.20 (1) states in pertinent part:

"At any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law."

On January 22, 2002 the defendant plead guilty to criminal sale of a controlled substance in the third degree before retired Justice Seymour Rotker. In return for the defendant's plea of guilty the Court promised the defendant a sentence of 4 ½ to 9 years incarceration as a predicate felon. The Court advised the defendant that it's promised sentence was subject to the following conditions, which the defendant stated he understood:

" The Court:

Your lawyer however says that after speaking

with you you want to withdraw your previously entered plea of not guilty and at this time plead guilty to the

charge of criminal sale of controlled substance in

the third degree based on the following promise I am

going to make to you and promise you are going to make

to me. Promise I make, Mr. Gonzalez you must come

back for sentence, cooperate with probation,

do not get rearrested and charged with another crime [*2]

or offense. If you do everything you are suppose to

do and come back for sentence I will promise you

the minimum sentence I can under the law of 4 and a

half to 9 years. I will recommend that when you do your

time you get released as soon as is legally permissible

assuming you measure up to your responsibilities while

in jail. However, if you don't come back for sentence or if

you don't cooperate with probation or if you get rearrested

and charged with a new crime or offense I am not going

to give you 4 and a half to 9. I am going to sentence you

to jail for 8 to 16 years. I am not going to give you

your plea back. And if you don't come back for sentence

without having a legitimate excuse I will sentence you

8 to 16 years in your absence. Do you understand that?

The Defendant: Yes." Plea transcript, January 22, 2002, pp 3-4.Clearly, the Court apprised the defendant that if he violates any of these conditions he would be facing an enhanced sentence. The case was adjourned to March 18, 2002 for sentence. The defendant did not appear in court on that date. As a result, the Court forfeited bail and issued a warrant for the defendant's arrest. The case was adjourned to April 3, 2002 and then to April 24, 2002 for an absentia hearing to be held. On April 24, 2002, said hearing was held. The court determined the defendant had voluntarily absented himself from the proceedings and the Court then sentenced the defendant in absentia to a term of incarceration from 8 to 16 years.

On June 4, 2003 the defendant was involuntarily returned to court. On June 11, 2003 the Court executed sentence upon the defendant.

The defendant now seeks specific performance of the sentence promise made to him at the plea negotiation, a term of imprisonment of 4 ½ to 9 years.

The court made the terms of the plea bargain agreement perfectly clear to the defendant. The defendant, who had extensive prior experience in the criminal justice system expressly accepted the terms. Therefore, the court was not bound to honor the original bargain, and was free to increase the sentence of the defendant. (see People v. Innes , 111 AD2d 356 [1985]; People v Gamble, 111 AD2d 869 [1985]). Accordingly, the sentence imposed by the Court was appropriate. The defendant's motion is denied in it's entirety.

Order entered accordingly. [*3]

_________________________STEPHEN A. KNOPF, J.S.C.