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Court Discusses the Outcome of Concurrently Running Sentences

New York Criminal Lawyer said on November 1994, in Supreme Court, New York County, defendant was sentenced to 20 years to life imprisonment after having been found guilty of murder in the second degree. On that day, defendant filed a notice of his intent to appeal.

Precisely one week later defendant was produced in Supreme Court, Bronx County, in connection with an indictment for criminal sale of a controlled substance in the third degree one count and criminal possession of a controlled substance in the third degree, carrying a possible maximum sentence of 81/3 to 25 years; these were defendant’s only arrests.

A New York Criminal Lawyer said that defendant agreed to plead guilty to the top count of the indictment in exchange for a sentence of 1 to 3 years to run concurrently with the murder sentence. Defendant pleaded guilty to criminal sale of a controlled substance in the third degree, admitting that on January 5, 1994, he sold one bag of cocaine to an undercover officer in exchange for $20; he was subsequently sentenced to 1-to-3 years’ imprisonment.

A Nassau County Criminal Lawyer said the defendant’s appellate attorney moved to vacate his murder conviction, arguing that he had been denied effective assistance of trial counsel. The Judge who had presided over the trial vacated defendant’s murder conviction and ordered a new trial, concluding that he had not received reasonably competent representation and that counsel’s errors seriously compromised defendant’s right to a fair trial.

The court noted that counsel seemed to be unfamiliar with important Rosario material in his possession, failing to impeach the People’s primary witness-the only witness connecting defendant to the shooting-and never calling potentially exculpatory witnesses to challenge that identification.

A Queens Criminal Lawyer says after his acquittal, defendant brought a CPL 440.10 motion to vacate his Bronx County conviction on the ground that his plea had been induced by the promise that his sentence would run concurrently with the New York County sentence, since set aside.

Supreme Court granted defendant’s motion, finding that the “appellate court consistently vacated guilty pleas which were induced by a promise of a concurrent sentence following the reversal of the original conviction without noting whether the later sentence had already been served”.

The Appellate Division reversed and reinstated defendant’s Bronx conviction based on the “totality of these circumstances,” citing unrelated indictments in different counties before different judges. The Appellate Division further noted that when defendant pleaded guilty in Bronx County the court stated that the sentence would be concurrent “with any other sentence being served,” which on its face appeared to promise a concurrent sentence only if there was another sentence to be served.

This Court on several occasions has concluded that when a guilty plea is induced by the court’s explicit promise that the defendant will receive a lesser sentence to run concurrently with a sentence in another case, and that conviction is overturned, the defendant may withdraw his plea and face the indictment, since the promise cannot be kept.

In our Court, the People’s argument centers on the fact that, having completed his drug sentence concurrently with time being served for murder, defendant actually received what he bargained for; thus, the promise was in fact fulfilled. But the fortuity of timing cannot be determinative of the issue, as it was not in Boston, where defendants also had served out their lesser sentences by the time they sought vacatur of their pleas. It cannot be that, in these circumstances, a plea may be vacated if defendant happens still to be serving the lesser sentence, and otherwise not.

What changed essentially here were the facts that induced defendant’s plea. In effect, when the murder conviction was vacated, defendant’s “concurrent” time became a nullity-in the eyes of the law, it is as if he served no time at all on the murder, and his sentence on the drug charge stood alone, based on an unfulfilled and unfulfillable promise.

Finally, for the future, we note that a better practice might be for the parties in similar circumstances to spell out, on the record, the consequences that will follow upon vacatur of the conviction.

Accordingly, the order of the Appellate Division should be reversed and the order of Supreme Court, Bronx County, vacating the plea reinstated.

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