People v. Pendleton

¶1dissent in a memorandum by Silver-man, J., as follows: I would affirm the conviction. In People v Selikoff (35 NY2d 227, 238), the Court of Appeals said: "any sentence 'promise’ at the time of plea is, as a matter of law and strong public policy, conditioned upon its being lawful and appropriate in light of the subsequent presentence report or information obtained from other reliable sources. That the court in the Selikoffcase did not explicitly condition its 'promise’ (although the implication could hardly be clearer) upon its later evaluation after reading the presentence report, or the facts it learned from the trial of the codefendants, is therefore of no consequence.” Of course, if the Judge wishes to depart from his promise, he must give the defendant an opportunity to withdraw the plea of guilty. But if defendant, given that opportunity and knowing that the Judge is not going to keep his original promise, declines the opportunity to withdraw his plea, then the Judge may impose whatever sentence he deems proper within the legal limits, without regard to the plea promise. That is precisely what happened here. The Judge was of the opinion that the original offer was not sufficient, and after giving the defendant the opportunity to withdraw, which defendant declined, the Judge imposed the sentence now appealed from. I think it perfectly proper for the Judge to consider, though of course he was not bound by, the views of the victim of the crime. The Judge said: "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 of the circumstances in this case.” He referred to the four- to eight-year sentence that he finally imposed as "the sentence that I believe is appropriate.” He said: "I think the sentence I would impose is too lenient, four to eight years, for the fact[s] in this case I think the sentence of three to six is much too lenient. I’m only going to impose a four to eight year sentence because you did plead guilty some time ago.” Obviously referring to People v Selikoff (supra),the trial court said: "the Court of Appeals has ruled in cases of this kind sentence is also considered on a probation report and until that report is received this plea bargain cannot be enforced as long as the defendant is put back to the position before the plea he hasn’t lost the benefit of that bargain.” "Specific performance” may not be applied in a criminal case to compel the Judge to impose a sentence, which after mature reflection and consideration of the probation report, he deems to be inappropriate. (People v Selikoff, 35 NY2d 227, 238, supra.) While the result would be the same in my thinking even if the offer had been in terms of promise rather than statement of intention, I note that in fact what the court said at plea was "it’s my intention to impose” a three- to six-year term. (Italics added.)