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Supreme Court, Kings County, New York.

The PEOPLE of the State of New York, Plaintiff, v. Anthony PALUMBO, Defendant.

Decided: February 27, 1997

Howard H. Weiswasser, New York City, for defendant. Charles J. Hynes, District Attorney of Kings County, Brooklyn (Mark Hale, of counsel), for plaintiff.

Defendant moves to vacate his judgement on the grounds that it was procured by “fraud” or “misrepresentation” on the part of the Court.   The motion earlier had been made orally and was denied.   The Court deems this motion to be a motion to reconsider.

The motion to reconsider is granted, the Court's prior decision and order is recalled and vacated, and this decision and order is substituted.

In deciding this motion, the Court has considered the moving papers, plea minutes of January 17, 1997, sentencing minutes of January 29, 1997, minutes of January 30, 1997, minutes of February 5, 1997, and minutes of February 14, 1997.   The People do not oppose defendant's motion.   They have previously stated their agreement with defendant.

Defendant was indicted for the murder of Kathleen D'Angelo Palumbo.

On January 17, 1997, over the prosecution's objection, defendant pleaded guilty to Depraved Indifference Homicide.   At the time of the plea, the Court promised to sentence defendant to a period of incarceration having a minimum term of 15 (fifteen) years and a maximum term of Life.   The Court also promised recommending mental evaluation by the Department of Correction.   The following colloquy then occurred:

THE COURT:  Now, other than the promise I made to you regarding your sentence, has anyone else made any promise to you?


THE COURT:  Are there any other agreements between the defendant and the District Attorney's Office?


(Plea minutes, January 17, 1997, p. 8, line 25-p. 9, line 9)

No statement or promise was made regarding any recommendation of parole.

On January 29, 1997, the Court sentenced the defendant as promised to a term of incarceration having a minimum of 15 (fifteen) years and a maximum of Life.   In addition, the Court stated that it was recommending that “defendant do at least 25 (twenty-five) years.”   The Court also directed that the sentencing record be sent to the Parole Board.

On January 30, 1997, defendant orally stated that the Court “gratuitously put on the record that you (this Court) are recommending to parole that he (defendant) not be released before a minimum of 25 (twenty-five) years.”  (Minutes, January 30, 1997, p. 3, lines 4-6)  The Court adjourned the matter to February 10, 1997 for Motions and set a date of February 5 for control.

On February 14, 1997, the Court issued an oral decision, granting vacatur of the sentence and remitting the matter for resentence to another Justice.   The Court denied the motion to vacate the plea/conviction.

Defendant's written motion followed.

 Where a guilty plea is induced by a promise, the promise must be kept or defendant must be given the privilege to withdraw the plea (Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427;  People v. Torres, 45 N.Y.2d 751, 753, 408 N.Y.S.2d 487, 380 N.E.2d 313;  People v. Frederick, 45 N.Y.2d 520, 524, 410 N.Y.S.2d 555, 382 N.E.2d 1332).   In New York, only promises that appear on the plea record are recognized (People v. Huertas, 85 N.Y.2d 898, 899, 626 N.Y.S.2d 750, 650 N.E.2d 408;  People v. Ramos, 63 N.Y.2d 640, 643, 479 N.Y.S.2d 510, 468 N.E.2d 692;  People v. Danny G., 61 N.Y.2d 169, 173, 473 N.Y.S.2d 131, 461 N.E.2d 268).   Where defendant states that no other promises have been made, the courts will not recognize any other claimed basis for the plea (Matter of Benjamin S., 55 N.Y.2d 116, 120, 447 N.Y.S.2d 905, 432 N.E.2d 777).

 In this case, the record indicates that the only promise made was a sentence of incarceration of 15 (fifteen) years to Life.   No “on the record” promise was made regarding the Court's recommendation for parole.   The Court cannot recognize any consideration that the defendant may have had in his mind regarding parole eligibility.   The Court, under the terms of the promise, was free to make any appropriate recommendation regarding defendant's parole.

In addition, the plea could not have been “induced” by any expectation of parole release or court recommendation.   In New York, the decision to release a sentenced prisoner on parole rests solely with the Parole Board (Matter of Briguglio v. Board of Parole, 24 N.Y.2d 21, 26, 298 N.Y.S.2d 704, 246 N.E.2d 512).   In the absence of a violation of statute or regulation, the Court cannot interfere with parole release decisions of the New York State Board of Parole (Tarter v. State of New York, 68 N.Y.2d 511, 517, 510 N.Y.S.2d 528, 503 N.E.2d 84;  Matter of Briguglio v. Board of Parole, supra at 29, 298 N.Y.S.2d 704, 246 N.E.2d 512;  Matter of Williams v. Board of Parole, 220 A.D.2d 753, 633 N.Y.S.2d 182).   Even where a court disagrees with the decision of the Board, there is no authority to order the release of a prisoner on parole (Matter of Moore v. New York State Board of Parole, 198 A.D.2d 836, 837, 604 N.Y.S.2d 411).   Therefore, neither the judge (Russo v. New York State Board of Parole, 50 N.Y.2d 69, 76-77, 427 N.Y.S.2d 982, 405 N.E.2d 225) nor the defendant have any expectation of when defendant will be released (People ex rel Talley v. New York State Board of Parole, 232 A.D.2d 798, 799, 648 N.Y.S.2d 746, 747).   Even where defendant displays exemplary behavior during the term of imprisonment, parole release is not mandated (Tarter v. State of New York, supra, 68 N.Y.2d at 517, 510 N.Y.S.2d 528, 503 N.E.2d 84).

Thus, defendant had no legal expectation as to when he would have been released even with good behavior.

While the Parole Board may consider the Court's recommendation (see generally, Matter of Williams, 220 A.D.2d 753, 754, 633 N.Y.S.2d 182), the decision is solely that of the Board of Parole (see case cited earlier).

Thus, the plea was not “induced” by any parole consideration.

The Court finds no violation of defendant's constitutional rights.

 It is noted that the plea allocution need not contain any statement regarding parole (Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203;  People v. Ramos, 63 N.Y.2d supra at 643, 479 N.Y.S.2d 510, 468 N.E.2d 692;  Hunter v. Fogg, 616 F.2d 55, 61).

 Despite the lack of violation of defendant's constitutional rights, the Court believes that its statement regarding parole was premature.   An analysis of Executive Law, Article 12B (section 259 et seq.), Correction Law, Article 8 (section 212 et seq.) and 9 NYCRR, subtitle CC, Part 8000 (section 8000.1 et seq.) indicates that parole determination and consideration should be made at the time the defendant becomes eligible for parole, not earlier.   Defendant's behavior between sentencing and parole, and defendant's planned activity if released, are major considerations in determining release.   These factors cannot be considered at sentencing.

The Court's statement was, therefore, premature.


CPL 440.10, sub. 4, permits a court, upon granting a motion to vacate a judgement * , to “take such other action as is appropriate in the circumstances.”   Defendant's motion (paragraph 3) asks “For such other and further relief as to the Court seem just and proper.”

In People v. Tindle, 61 N.Y.2d 752, 754, 472 N.Y.S.2d 919, 460 N.E.2d 1354, the Court said:

As a remedy, appellant requests the option of withdrawing his guilty plea.   While such relief may be necessary in some circumstances to restore a defendant to his presentence position, it is not required here.   Appellant can receive the benefit of his bargain through resentencing before a different Judge.

Similarly, the Court in (Santobello v. New York, supra, 404 U.S. at 263, 92 S.Ct. at 499) stated one of the proper remedies for an alleged breach of a plea bargain is to send the matter to another Judge/Justice for sentencing in accordance with the agreement.   The remedy of sending the matter to another Judge is long standing (People v. Torres, 67 N.Y.2d 659, 661, 499 N.Y.S.2d 668, 490 N.E.2d 535;  People v. Selikoff, 35 N.Y.2d 227, 239, 360 N.Y.S.2d 623, 318 N.E.2d 784).

 In this case, no breach of promise occurred.   The Court's premature statement regarding parole can be cured by resentencing before a different Judge.   Thus, if it is proper remedy for a breach of promise that resentence occur before a different court, it is proper in this case.

The Court found the plea bargain appropriate.   The Court sentenced the defendant as promised.   There was no defect in the plea.  (Although argument was made that the allocution was deficient, the Court found no deficiency.)   There is no defect in the conviction, i.e., plea.   There exists no legal basis to vacate the plea.

It is also noted that Executive Law 259-i(1)(a)(i) authorizes the Parole Board to consider “recommendations of the sentencing court.”   Since this Court will not be the “sentencing Court,” the Parole Board will consider only the sentencing Court's recommendations and not this Court's recommendations.

The Court finds that in this case the appropriate remedy where no breach of the promise has occurred and where the sentencing promise can be fulfilled is resentence before a different Judge/Justice.

The part of the judgement constituting the sentence is vacated.   The Conviction remains valid.

This matter is referred to another Judge/Justice for resentencing.

The Court further directs that the minutes of January 29, 1997 not be forwarded to the Parole Board.


FOOTNOTE.   A judgement consists of a conviction and sentence [CPL 1.20(15) ].  The vacatur of the sentence vacates the judgement although not necessarily the conviction.


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