People v. Pendleton , 73 A.D.2d 857 ( 1980 )

Judgment of the Supreme Court, New York County, rendered July 28, 1978, modified, on the law and the facts, by reducing the sentence imposed upon defendant from a minimum of four years and a maximum of eight years to a minimum of three years and a maximum of six years, and, except, as so modified, affirmed. Defendant was charged with robbery in the first degree and related crimes. He was permitted to plead guilty to robbery in the second degree to cover the indictment. At the taking of the plea the court informed the defendant: "There is going to be a probation report. It appears that you have previously been convicted of a felony. If that is the case, I must impose a minimum sentence as well as a maximum sentence. Although I could impose a sentence of up to 15 years, it’s my intention to impose a minimum term of three years and a maximum term of six years. That sentence will run concurrently with a sentence in Kings County if you have been sentenced in Brooklyn before your sentence in this case. Has anyone made any other promises to you about your sentence in this case? (Italics supplied.) the defendant: No”. At the sentencing the court noted that: "the complaining witness does request the Court to impose substantial punishment which reinforces my opinion that the offer that I made to the defendant of a sentence of a minimum of three years and a maximum of six years is not sufficient in view of all the circumstances in this case. mr. vergari [the prosecutor]: I should also state for the record that the complainant again stated that he felt this defendant did help or did prevent his accomplice from killing the complaining witness. That was his feeling but he did feel at the time it happened he did feel he would like the maximum possible punishment in the Justice’s sentence”. Thereupon the court offered the defendant the opportunity to withdraw his plea, informing him that if he failed to do so he would impose a sentence of not less than four and not more than eight years. The defendant refused to withdraw the plea and the court imposed a sentence of a minimum of four years and a maximum of eight years. We have hitherto held that a defendant "had no absolute right to have his plea of guilt accepted * * * But after its acceptance and full agreement on sentence reached, in the absence of fraud the court had no inherent power to set the plea aside without the defendant’s consent” (People v Griffith, 43 AD2d 20, 24). Here, the plea had been accepted with full agreement on sentence. Though the complainant felt that the sentence should be "the maximum possible punishment” the court had not reserved the right to withdraw the plea, nor did the probation report or other circumstances brought to his attention warrant such withdrawal. In the absence of such a reservation or other information, he could not withdraw the plea or impose a sentence higher than that promised. We modify the judgment accordingly. Concur—Sandler, Sullivan and Bloom, JJ.