People v Ciccarelli, 2006 NY Slip Op 06655 [available here].)
The defendant pled guilty back in 1989 to one count of Criminal Sale of a Controlled Substance in the First Degree (CSCS 1st) and one count of Attempted CSCS 1st. The parties to the plea were operating under the understanding that Attempted CSCS1st was a class A-II felony, and the agreed-upon sentence (4 years to life) reflected this erroneous understanding. Attempted CSCS 1st is actually an A-I felony, making the agreed-upon sentence illegal. Defendant made a 440 motion to withdraw his entire plea based on the illegal sentence; the 440 court only allowed him to withdraw his plea to the Attempted CSCS1st count, and let the plea and sentence on the other count stand. The Fourth Department reversed:
The court erred, however, in granting the motion only to the extent of vacating the sentence imposed on that count and permitting defendant to withdraw his plea of guilty on that count. "Where the plea bargain includes a sentence which is illegal because the minimum imposed is less than that required by law, . . . the proper remedy is to vacate the sentence and afford . . . defendant, having been denied the benefit of the bargain, the opportunity to withdraw the plea" . Further, "[i]nasmuch as the entire sentence is part and parcel of the plea bargain,' it must be vacated in its entirety regardless of whether portions of the sentence are legal".
(Ciccarelli, 2006 NY Slip Op 06655 [citations omitted].)
New decisions from the AD4 coming this afternoon.
