Claude Castro, for appellant.
Steven M. Sharp, for respondent.
By indictment dated February 8, 2005, the grand jury accused defendant Andre Collier of five first-degree robberies (Penal Law § 160.15 ). Each count of the indictment related to a holdup at a different store in the Albany area during a two-month period in the fall of 2004. Defendant was alleged to have displayed and threatened the immediate use of a knife to force employees of these stores to turn over monies in the cash register.
At a hearing on April 22, 2005, defendant was offered a plea bargain requiring him to plead guilty to two counts of robbery in the first degree (the first and fifth counts of the indictment) in satisfaction of the full indictment and several unindicted robberies. Under the terms of the proposed plea agreement, as described by County Court, defendant would be sentenced to a determinate term of 25 years in prison on the first count of the indictment, and five years on the fifth count, each to be followed by five years of postrelease supervision. Further, the judge retained discretion to direct these sentences to run either concurrently or consecutively, based upon his evaluation of the information in the yet-to-be-prepared presentence report. Defendant agreed to these terms and conditions and pleaded guilty.
On June 17, 2005, defendant appeared for sentencing, and County Court declared him to be a second felony offender. Based on his review of the presentence report, the judge imposed the agreed-upon 25-year and five-year determinate sentences consecutively rather than concurrently. Defendant appealed, arguing that his sentence was excessive. On June 26, 2008, the Appellate Division affirmed the judgment, holding that defendant was "precluded from challenging the sentence imposed as harsh and excessive" because he had knowingly, intelligently and voluntarily waived his right to appeal (52 A.D.3d 1121, 1122 [3d Dept 2008], lv denied 11 N.Y.3d 786 ).
Defendant then moved pro se pursuant to CPL article 440 to vacate the judgment of conviction and set aside his sentence on the ground the five-year sentence he received to satisfy count five of the indictment was illegal. In support of his motion, defendant enclosed a letter from a prison official indicating that, as a second felony offender, his minimum legal sentence for first-degree robbery was 10 years. In a decision and order dated August 10, 2009, County Court denied the motion without a hearing. The judge noted that defendant had not suffered any prejudice by virtue of the alleged error, which, in fact, benefitted him. He additionally concluded that defendant had waived this issue by not raising it on direct appeal. Defendant appealed the judge's order.
On December 2, 2010, the Appellate Division agreed that defendant's five-year sentence on count five of the indictment was illegal, and held that he was not barred from raising this issue in a CPL article 440 motion even though it could have been raised on direct appeal (79 A.D.3d 1162 [3d Dept 2010]). The court vacated defendant's sentence and remitted the matter to County Court for the judge to "resentence defendant in a manner that ensures that he receives the benefit of his sentencing bargain or permit both parties the opportunity to withdraw from the plea agreement" (id. at 1163).
At the resentencing hearing on January 13, 2011, defendant asked to withdraw his plea; the People, however, requested that County Court resentence defendant. By this time, six years had elapsed since the robberies charged in the indictment. Voicing his intention to "impose a sentence that clearly ensures that [defendant] receives the benefit of the sentencing bargain, " the judge sentenced him to concurrent determinate prison terms of 25 years on the first count of the indictment and 10 years on the fifth count, each to be followed by five years of postrelease supervision.
On appeal, defendant argued that County Court could not legally resentence him to 10 years in prison on the fifth count of the indictment because he originally pleaded guilty to this crime in exchange for a five-year incarceratory term. The Appellate Division disagreed, observing that
"defendant actually received a lesser sentence under the resentence than the one he agreed to under the plea agreement because County Court directed the sentences run concurrently, instead of consecutively, thereby reducing his aggregate prison exposure from 30 to 25 years. Thus, defendant received a sentence that was better than 'the benefit of his bargain' upon resentencing, and County Court was not required to allow him to withdraw his plea" (91 A.D.3d 987, 988 [3d Dept 2012]).
A Judge of this Court granted defendant leave to appeal (19 N.Y.3d 1024 ), and we now affirm.
"[A] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored" (People v Selikoff, 35 N.Y.2d 227, 241 , cert denied 419 U.S. 1122 ), citing Santobello v New York, 404 U.S. 257, 260 ; accord People v Esposito, 32 N.Y.2d 921, 923 ). "The choice rests in the discretion of the sentencing court" and "there is no indicated preference for one course over the other" (Selikoff, 35 N.Y.2d at 239; see also Santobello, 404 U.S. at 263 ["The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, ... or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty"]).
The sentencing court may have good reason to reject a defendant's request to withdraw his plea. Where, as here, years have gone by since the original plea, it may be difficult for the People to locate witnesses, obtain their renewed cooperation and proceed to trial on the "then stale indictment" (Selikoff, 35 N.Y.2d at 240 [discussing Esposito, supra ]). Under these circumstances, allowing a defendant to withdraw his plea would give him "more than he was entitled" to under the bargain he struck (id.). Thus, the People "can hold a defendant to an agreed sentence rather ...