Defendant appeals from the judgment of the Supreme Court, New York County (Carol Berkman, J.), rendered May 18, 2011, convicting her, upon her plea of guilty, of criminal sale of a controlled substance in the third degree, and imposing sentence.
The opinion of the court was delivered by: Tom, J.
Appellate Division, First Department
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.
Decided on April 24, 2012
Peter Tom,J.P. John W. Sweeny, Jr. Leland DeGrasse Sheila Abdus-Salaam Sallie Manzanet-Daniels, JJ.
Defendant appeals from a judgment convicting her, on her guilty plea, for her peripheral role in the sale of a small quantity of drugs to an undercover police officer. Defendant contends that she is entitled to specific performance of a negotiated plea agreement, having fulfilled her obligations thereunder, and notes that the three-year sentence imposed by the court is longer than that meted out to any direct participant in the sale. She seeks to replead to a class A misdemeanor and to be sentenced to a term of no more than one year.
Defendant was charged with third-degree criminal sale of a controlled substance arising from her role as a lookout for two co-defendants in a sale of four "zips" of crack cocaine to an undercover police officer. On July 16, 2009, defendant entered into a written plea and cooperation agreement with the District Attorney's office, which provided that defendant agreed to plead guilty to the class B felony charge contained in the indictment and to provide information concerning criminal activity in her neighborhood, particularly drug sales. If defendant complied with the provisions of the plea agreement, the People would recommend that she be permitted to replead to seventh-degree criminal possession of a controlled substance and receive a term ranging from a minimum, non-jail sentence, with probation, to a maximum sentence of one year imprisonment. The plea agreement provided that the People have sole discretion to determine if defendant's cooperation satisfactory and whether she had complied with its terms.
The court expressed reservations about defendant entering into a cooperation agreement, noting that it had "suggested drug treatment for [defendant] from the beginning," and warned defendant that the "temptation is going to be very big" to resume using drugs once out on the streets. The court then took defendant's allocution pursuant to the terms of the plea agreement and released her on her own recognizance.
In October 2010, the People provided the court with a confidential status report, which stated that defendant's cooperation had been affected initially by illness, as revealed by hospital records. However, in February 2010, defendant "began providing good information" to the police, and also participated in "controlled drug buys," resulting in the issuance of search warrants and four arrests.
The People noted that defendant was "well known" in the neighborhood where she lived and was providing cooperation. Since entering into the agreement, a drug supplier refused to deal with her due to rumors that she was working with the police and defendant was "confronted by an individual who was arrested as a result of information given by her to police[.]" The People also noted that defendant "has children who live in the neighborhood, and whose whereabouts are known to some of the individuals who have been arrested based upon [her] cooperation with the police." Noting her "diligent cooperation in the last seven months," the court was advised that the People were "considering whether to make a favorable recommendation to the Court at the time of sentencing."
At the next court appearance on December 1, 2010, the prosecutor had the courtroom sealed and requested that the court seal the minutes. The court responded that it had not been kept apprised of the progress of the case after asking on a number of occasions to be kept informed. The court then stated it had no idea why the courtroom should be closed and the minutes sealed.
The court further stated that the prosecution had put "[defendant] back to the street to hang out with the same people that she has been hanging out with all of her life, so that she could continue to supply you with, I don't know what[.]" The court added, "[N]ow in clear full fashion she's pregnant again with, what is it, five or six other children that she has none of, whom she is the mother to." The prosecutor again requested that the minutes be sealed, explaining that there were "things that [defendant] has been doing" pursuant to the plea agreement, which the People did not want to put "on the record if the minutes are not sealed." When the court refused to seal the minutes, the prosecutor asked to be permitted to approach the bench to explain. The court refused to permit the parties to approach and refused to seal the minutes, concluding that "the People don't want to be heard." Defense counsel then stated that the People would be "requesting to dismiss the indictment." The court ...