People v Golden

People v Golden 2019 NY Slip Op 02027 Decided on March 19, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 19, 2019
Sweeny, J.P., Renwick, Gische, Kahn, Kern, JJ.
4261/15 8603 8602

[*1]The People of the State of New York, Respondent,

v

Mitchel Golden, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered January 25, 2016, as amended May 24, 2016, convicting defendant, upon his plea of guilty, of attempted assault in the second degree (two counts), and sentencing him to concurrent terms of one to three years, unanimously reversed, on the law, the plea vacated, the superior court information dismissed, the indictment reinstated, and the matter remanded for further proceedings. Appeal from order, same court (Robert M. Stolz, J.), entered on or about September 15, 2017, which denied defendant's CPL 440.10 and 440.20 motions to vacate the judgment and set aside the sentence, unanimously dismissed, as academic.

As the People concede, defendant is entitled to vacatur of the plea because his negotiated plea included a promise of shock incarceration, and that promise cannot be honored because shock incarceration is only available for persons convicted of controlled substance or marijuana offenses (see Penal Law 60.04[7]). Since the guilty plea was induced by an unfulfilled promise, we vacate the plea in its entirety. The SCI was part and parcel of the negotiated plea. Therefore, we restore defendant to his preplea status and reinstate the indictment (see People v. Devalle , 94 NY2d 870, 872 [2000], People v Selikoff , 35 NY2d 227 [1974]).

This disposition renders defendant's remaining claims academic.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 19, 2019

CLERK