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December 29, 1995


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 George Gonzalez, a/k/a Richard Toscano, has petitioned the Court for a writ of habeas corpus, claiming that his New York State robbery conviction was obtained, and his sentence imposed, in violation of his federal constitutional rights. Petitioner subsequently withdrew the portion of his claim that relates to his conviction. The Court holds that the manner in which petitioner was sentenced deprived him of due process of law.


 Petitioner George Gonzalez was convicted of robbery in the first degree following a jury trial in the Supreme Court of the State of New York, Bronx County. When he came before the court for sentencing on May 12, 1987, he was awaiting trial on another indictment charging gun possession and faced possible indictment for an alleged prison assault.

 At sentencing, the Assistant District Attorney urged the court to impose a severe sentence. He discussed the pending gun and assault charges as well as other offenses for which petitioner previously had been convicted. In the course of his argument, the Assistant offered to drop the gun charge and not to pursue the assault charge if the court imposed a sufficiently severe sentence:

"It is my feeling that this defendant should receive a very severe sentence simply to safeguard all of us, but I could live with the sentence that the Court was talking about, and to show how much I feel satisfied with that, in the interest of justice, and in the interest of judicial economy, your Honor, and it is not part of a plea bargain, I am not plea-bargaining at this point, and I don't think that the Court was suggesting any sort of a plea bargain because I am not asking the defendant to plead guilty to anything, I am doing this on my own, even if the defendant wants to decline that I do this, I still can do it, and the Court can impose the sentence that the Court feels is appropriate, but if the Court gives the sentence that it was discussing, which was seven to twenty-one years, I of course would like a much higher sentence, but if the Court feels that that is appropriate, I, in showing how appropriate I feel it is, on my own, without any plea negotiations between myself and counsel for the defendant, I will dismiss the gun case that is pending and I will decline to prosecute on the prison assault case." (Sentencing Minutes ["Tr."] 7-8)

 The petitioner opposed the sentence proposed by the People and indicated his desire to proceed to trial on the assault and gun possession charges, even at the risk of conviction and imprisonment for "even more time on [those] other cases." (Tr. 15) He asserted that the alleged assault had been committed in self-defense, pointed out that he had not been found in possession of a gun in the gun possession case, and denied that he had possessed the gun as charged. Petitioner contended also that he was being punished for having refused to accept a plea bargain in the robbery case. (Tr. 8-15)

 The sentencing judge then stated that he had considered a sentence of five to fifteen years to be appropriate, but that he instead would sentence petitioner to seven to twenty-one years in consideration of the Assistant District Attorney's promise to dismiss the pending indictment and not to prosecute the assault charge:

"THE COURT: I felt that the appropriate sentence in this case, based upon the facts and the details of the case for which he was convicted before me, that an appropriate sentence would have been five to fifteen years to run consecutively to the first robbery for which he was found guilty by a jury. But after listening to Mr. Iannucci [the Assistant District Attorney], and the representations made by him, that he did, in effect, ask me to take into consideration the pending Attempted Murder Charge or assault charge against the defendant emanating from the attack on a fellow inmate, and his statement to me that he will not prosecute the gun charge, and he will not seek an indictment on the assault charge if I give the appropriate sentence. Mr. Iannucci, are you now making the statement that if I give seven years to twenty-one years that you will not prosecute the gun charge in this case against this defendant?
"MR. IANNUCCI: That is correct your Honor.
"THE COURT: And you will not go any further with the assault charges in the Riker's Island assault case?
"MR. IANNUCCI: That is correct Judge.
"THE COURT: Based on that representation by the Assistant District Attorney, the sentence of this court, Mr. Toscano, is that you be sentenced to an indeterminate term of imprisonment, which shall have a maximum term of twenty-one years and a minimum term of which shall have seven years, said sentence to run consecutively, that is, in addition to the sentence you were previously sentenced to ...

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