The defendant was convicted of possession of stolen property in the second degree, upon his plea of guilty while awaiting sentence on an unrelated matter. During his plea allocation, the defendant was promised a sentence of probation, to be served concurrently with his previous probation sentence, provided that he did not commit any other crime or offence before his sentencing. Two days after the plea allocation hearing, the defendant was arrested and charged with driving while intoxicated and aggravated unlicensed operation of a motor vehicle pursuant to the Vehicle and Traffic Law. As a result, the court sentenced the defendant to an indefinite term of imprisonment as he broke the terms of the plea bargain arrangement. The defendant appealed his sentence for DWI on the ground that it was harsh and excessive and to vacate the sentence.
The defendant’s criminal history was analyzed by the Appellate Division of the Supreme Court since he was a man of previous convictions. The defendant asserted that the sentence of an indefinite term of imprisonment was a violation of his due process rights because he was not convicted of the offences of with driving while intoxicated and aggravated unlicensed operation of a motor vehicle pursuant to the Vehicle and Traffic Law. However, the defendant was given the opportunity to explain or deny the circumstances of his arrest which is a part of the due process principle. The defendant, however, provided no explanation or information in order to cast doubt on the mind of the court that the accusations against him were false or for the court to formally inquire into the charges laid against him. As such, the appeal on this ground was dismissed as the terms of the plea bargain were clear, concise and the defendant was not a novice in the criminal justice system. The indeterminate sentence of imprisonment imposed following defendant’s re-arrest for charges of driving while intoxicated and aggravated operation of a motor vehicle was fair and it did not shock the conscience of the defendant. Two days prior to the re-arrest, the defendant had accepted a plea bargain sentence of probation which was imposed on the condition that defendant did not get re-arrested for any other crime or offense; however, he refused to abide to the strict conditions of the plea bargain agreement.
The defendant also sought to vacate his sentence pursuant to the Criminal Practice Law 440.20 which states that a judgment entered against the defendant may be set aside on the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law. However, the defendant failed to follow the procedure in applying for leave for the issue to be heard. The defendant sought to vacate his sentence but he did not obtain leave to appeal, as such the matter could not be heard. Issues that were not brought up for review were not properly before the appellate court. Therefore, the matter was remitted to the trial court for their consideration.