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The PEOPLE of the State of New York, Respondent, v. Raul GARCIA, Appellant.

Decided: January 28, 2010

Before MERCURE, J.P., SPAIN, MALONE JR., STEIN and McCARTHY, JJ. Francisco P. Berry, Ithaca, for appellant. Mark D. Suben, District Attorney, Cortland (Christopher I. Simser Sr. of counsel), for respondent.

Appeal from a judgment of the County Court of Cortland County (Campbell, J.), rendered July 17, 2008, convicting defendant upon his plea of guilty of the crime of criminal possession of a forged instrument in the second degree (two counts).

An indictment was handed down against defendant charging him with two counts of criminal possession of a forged instrument in the second degree, arising from his attempt to withdraw a $2,000 cash advance using a credit card that was not his. Following negotiations, defendant pleaded guilty to both counts and was sentenced to consecutive prison terms of 21/313 to 7 years. Defendant now appeals.

It is well settled that the People must honor any promise made during plea negotiations with regard to a sentencing recommendation (see People v. Clark, 61 AD3d 1179, 1182 [2009], lv denied 12 NY3d 924 [2009]; People v. Hoeltzel, 290 A.D.2d 587, 588 [2002]; see also Santobello v. New York, 404 U.S. 257, 262-263 [1971] ). Here, while discussing a possible negotiated sentence, County Court inquired whether the People would be seeking consecutive sentences for the two counts in the indictment. The People responded that, while defendant was in possession of two credit cards, he only tried to negotiate one of them and, thus, consecutive sentences “might be a stretch,” indicating their intent to forego requesting consecutive sentences. The court appeared to agree, but made no sentence promise. At sentencing, the court recollected that, at the time defendant's plea to the two counts was entered, the “recommended sentence by the [D]istrict [A]ttorney was two and a third to seven years concurrent.” However, the People, thereafter, argued for consecutive sentences and defendant was so sentenced, over his objection that he was induced to enter his guilty plea by the promise of concurrent sentences.

While defendant waived his right to appeal at the time of the plea, this does not foreclose his claims addressed to the People's subsequent failure to honor their plea promise (see People v. Hoeltzel, 290 A.D.2d at 588). Under these circumstances, we find that “[the People] almost certainly violated the spirit of the bargain” and, thus, the appropriate course is to remit the matter for resentencing before a different judge to avoid any possible prejudice to defendant from the People's improper argument and recommendation that defendant's sentences be consecutive (People v.. Muller, 174 A.D.2d 838, 839 [1991]; see People v. Hoeltzel, 290 A.D.2d at 588; People v. Oakes, 252 A.D.2d 661, 662-663 [1998] ).

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Cortland County for resentencing before a different judge; and, as so modified, affirmed.



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