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PEOPLE v. GERALD HODGE (09/19/94)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


decided: September 19, 1994.

THE PEOPLE, ETC., RESPONDENT,
v.
GERALD HODGE, APPELLANT. (IND. NO. 4727/91)

Guy James Mangano, P.j., William C. Thompson, VINCENT Pizzuto, Daniel W. Joy, Anita R. Florio, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Delury, J.), imposed April 6, 1992, upon his conviction of criminal possession of a weapon in the third degree, upon his plea of guilty, the sentence being 2 1/3 to 7 years imprisonment.

Ordered that the sentence is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, to give the defendant the opportunity to withdraw his guilty plea.

The transcript of the defendant's plea proceeding does not indicate that the defendant was told that if he failed to appear for sentencing the court could impose a harsher sentence than the one that was promised. Accordingly, even though the defendant failed to appear for sentencing, the court could not impose a sentence greater than that for which he had bargained without first affording the defendant an opportunity to withdraw his plea and stand trial (see, People v Elliot, A.D.2d [2d Dept., May 16, 1994]; People v Moreno, 196 A.D.2d 850, 602 N.Y.S.2d 28; People v Annunziata, 105 A.D.2d 709, 481 N.Y.S.2d 148).

The defendant's remaining contention is without merit (cf., People v Sanchez, 65 N.Y.2d 436, 444, 492 N.Y.S.2d 577, 482 N.E.2d 56).

MANGANO, P.J., THOMPSON, PIZZUTO, JOY and FLORIO, JJ., concur.

19940919

© 1998 VersusLaw Inc.



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