People v Mazzamuto (Michael)

[*1] People v Mazzamuto (Michael) 2007 NY Slip Op 51285(U) [16 Misc 3d 129(A)] Decided on June 25, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-904 S CR.

The People of the State of New York, Respondent,

against

Michael Mazzamuto, Appellant.

Appeal from a judgment of the District Court of Suffolk County, First District (Toni A. Bean, J.), rendered April 24, 2006. The judgment convicted defendant, upon his plea of guilty, of assault in the third degree.

Judgment of conviction reversed on the law and matter remanded to the court below for all further proceedings.

Defendant pleaded guilty to assault in the third degree (Penal Law § 120.00) with the understanding that he would be sentenced to 45 days in jail. The transcript of the plea proceeding does not indicate that defendant was advised that if he failed to appear on the date scheduled for sentencing, the court could impose an enhanced sentence.
Defendant failed to appear for sentencing, and when he finally did appear, the court sentenced him to one year in jail. Defendant sought to withdraw his plea, but the court refused to let him do so. The court could not impose a sentence greater than the one for which he had bargained without first affording him the opportunity to withdraw his plea and stand trial (see People v Brothers, 20 AD3d 486 [2005]; People v Ruiz, 309 AD2d 883 [2003]; People v Curcio, 276 AD2d 639 [2000]). Therefore, the judgment convicting him of assault in the third degree is reversed and the matter is remanded to the court below for all further proceedings.

We note that had the court advised defendant that failure to appear at sentencing could [*2]possibly result in an enhanced sentence, then defendant would not be entitled to withdraw his plea.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.