PEOPLE v. DIAZ (2007)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jose DIAZ, Defendant-Appellant.

Decided: June 07, 2007

MAZZARELLI, J.P., ANDRIAS, GONZALEZ, CATTERSON, MALONE, JJ.

Richard M. Greenberg, Office of the Appellate Defender, New York (Samantha G. Fisherman of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Alice Wiseman of counsel), for respondent.

Judgment, Supreme Court, New York County (John Cataldo, J.), rendered November 20, 2002, convicting defendant, upon his plea of guilty, of burglary in the first degree, and sentencing him, as a second felony offender, to a term of 12 years, unanimously reversed, on the law, the plea vacated and the matter remanded to Supreme Court, New York County for further proceedings.

Defendant entered his guilty plea in consideration of a promise that he would receive a sentence to run concurrently with the sentence to be imposed for his Kings County conviction. Since that conviction has been reversed on appeal, he is entitled to withdraw his plea (People v. Rowland, 8 N.Y.3d 342, 834 N.Y.S.2d 58, 865 N.E.2d 1224 [2007] ). In light of this determination, defendant's other challenge to his guilty plea is academic.

Defendant's suppression claim is without merit.

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