People v Walker

People v Walker 2007 NY Slip Op 08658 [45 AD3d 1401] November 9, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v Constance Walker, Appellant.

—[*1] The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), for defendant-appellant.

Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), for respondent.

Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered August 2, 2006. The judgment convicted defendant, upon her plea of guilty, of burglary in the second degree and robbery in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of burglary in the second degree (Penal Law § 140.25 [2]) and robbery in the third degree (§ 160.05). As part of the plea agreement, County Court stated that it would sentence defendant to specified terms of imprisonment. We agree with defendant that the court erred in imposing an enhanced sentence that "was—in part—expressly based upon defendant's purported violations of plea terms which were never imposed or agreed to at the plea proceedings as conditions [of] the plea bargain and agreed-upon sentences" (People v Covell, 276 AD2d 824, 825 [2000]; see People v Sundown, 305 AD2d 1075, 1076 [2003]). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court to impose the sentence promised or to afford defendant the opportunity to withdraw her plea (see Sundown, 305 AD2d at 1076). Present—Gorski, J.P., Martoche, Smith, Peradotto and Green, JJ.