People v. WimplePeople v. Wimple
—Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Tomei, J.), rendered September 30, 1992, convicting him of criminal possession of a weapon in the third degree under Indictment No. 12600/91, upon his plea of guilty, and imposing sentence, (2) an amended judgment of the same court, also rendered September 30, 1992, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of a weapon in the third degree under Indictment No. 17443/89, and (3) a judgment of the same court (Pincus, J.), rendered October 8, 1992, convicting him of criminal sale of a controlled substance in the fifth degree under Indictment No. 9908/92, upon his plea of guilty, and imposing sentence.
Ordered that the judgment rendered under Indictment No. 12600/91 is modified, by vacating the sentence imposed thereunder; as so modified, that judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith; and it is further,
Ordered that the amended judgment rendered under Indictment No. 17443/89 is reversed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith; and it is further,
Ordered that the judgment rendered under Indictment No. 9908/92 is affirmed.
On July 20, 1992, as part of a negotiated agreement, the defendant entered a plea of guilty to criminal possession of a weapon in the third degree in full satisfaction of Indictment No. 12600/91, and he admitted a violation of the conditions of his sentence of probation previously imposed under Indictment No. 17443/89. The court promised the defendant a sentence of one year imprisonment under Indictment No. 12600/91, to run concurrent with a promised sentence of one year imprisonment on the violation of probation under Indictment No. 17443/89. Prior to the imposition of sentences under
The transcript of the minutes of the plea proceedings of July 20, 1992, does not indicate that the defendant was told, nor can it be implied therefrom, that he understood, that if he were rearrested prior to the date scheduled for sentencing, the court could impose harsher sentences than the two concurrent terms of one year imprisonment which he was promised without first allowing him an opportunity to withdraw the plea of guilty and admission of a violation of probation and stand trial (see, People v Outlaw,
When the court learned that the defendant had been rearrested, it should have afforded him the opportunity to either withdraw his plea of guilty under Indictment No. 12600/91 or to accept the harsher sentence under that indictment. Accordingly, we vacate the sentence imposed under Indictment No. 12600/91 and remit the matter to the Supreme Court to permit the defendant to either withdraw his plea of guilty or to accept the harsher sentence. Moreover, since the defendant’s conviction of a violation of probation under Indictment No. 17443/89 was based upon his conviction under Indictment No. 12600/91, the judgment imposed under Indictment No. 17443/89 is reversed, and that matter is remitted to the Supreme Court for further proceedings after the defendant decides to either withdraw his plea of guilty under Indictment No. 12600/91 or to accept the harsher sentence offered under that indictment (see, People v Michael,
We also conclude that the defendant’s waiver of his right to appeal was conditioned on the premise that the sentence which would ultimately be imposed would be the promised sentence. Under the circumstances, this waiver should not be enforced (see, People v Prescott,
We have examined the defendant’s remaining contentions with regard to the sentences imposed under Indictments Nos. 12600/91 and 17443/89 and find that they are either academic in light of our disposition of the appeals, or without merit.