The opinion of the court was delivered by: Lippman, Chief Judge
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Defendant was charged by indictment with two counts of reckless endangerment in the first degree (Penal Law § 120.25), one count of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 ) and numerous misdemeanors and violations. According to the indictment, defendant, while driving with a suspended license, was pulled over by a police officer for failing to observe a stop sign. When asked by the officer to produce his license, defendant sped away, committing numerous traffic offenses and, in the course of being chased, drove his Ford Explorer at a high speed through a one-lane construction zone into oncoming traffic, causing flagmen at each end of the zone to jump out of the way of his vehicle. Defendant's license had been suspended some 28 times and he had an extensive criminal record, including at least two felonies. He was on parole at the time of the events here at issue.
At the plea proceedings, defendant was informed by the court that, if he went to trial and was convicted, he faced consecutive sentences. Defendant indicated in substance that, in accordance with the previously agreed upon plea bargain, he wished to enter a plea of guilty to the indictment's top three counts in full satisfaction of the accusatory instrument and understood that he would be sentenced to concurrent terms, the longest of which would be 31/2 to 7 years. He acknowledged that, at the time of the events in question, he had been driving in the town of Liberty, New York without a valid license; that his license had previously been suspended on 28 occasions; that he drove a Ford Explorer through a construction zone "pretty fast"; and that he observed, but did not obey, flagmen directing traffic into and out of the single lane passing through the work zone. During this allocution, the following exchange took place:
"THE COURT: And did you ignore the traffic directions and cause one of the construction workers to jump out of the way to avoid being hit by your car?
"THE DEFENDANT: I don't know if he jumped out, your honor. I know I went by.
"THE COURT: Very close. You could have killed him if you hit him?
"THE DEFENDANT: I don't think so. I don't know.
"THE COURT: You didn't kill him, of course. But, you came so close that you created a situation that was very dangerous.
"[DEFENSE COUNSEL]: Your honor, we don't dispute the allegation. My client has no recollection of particular individuals. But, we don't dispute the allegations and I have had an opportunity to review the allegations, as well as the statement with my client, and we don't dispute the voracity [sic] of the situation."
After accepting defendant's plea, the court warned defendant that his failure to appear for sentencing on the appointed date would result in a sentence of 12 to 48 years. It is clear that a sentence of that length could not have been imposed.
Some 31/2 months after entering his plea, defendant, represented by new counsel, moved unsuccessfully before a different judge to withdraw it.
The essential issues raised on the motion, and upon which the Appellate Division Justices differed in their disposition of the ensuing appeal to that Court, are whether defendant was misinformed as to what appears to have been the only real benefit of his plea (i.e., concurrent as opposed to consecutive sentences), and whether the allocution was fatally defective with respect to the reckless endangerment counts. These issues, decided against ...