People v. Murray

Sandler and Carro, JJ.,

dissent in a memorandum by Carro, J., as follows: We would modify to the extent of reducing the sentence from a minimum of three years to a minimum of one year with a maximum of life. During plea bargaining discussions, the District Attorney agreed to recommend and defense counsel agreed to accept a plea with a minimum term of one year as to this defendant and three years as to the codefendant. The court stated that it "would accept those recommendations provided that the probation report showed nothing that persuaded this court to consider a longer time of imprisonment. And in that case, both defendants would be given the opportunity to withdraw their pleas and proceed immediately to trial.” The defendant had five previous arrests, primarily drug related, three of which had been dismissed and two of which, more than 10 years old, had resulted in misdemeanor convictions. When told that he would have to be remanded on entry of the plea, the defendant requested a postponement to obtain wages due him for the benefit of his family. The court wished to enter the plea immediately. The matter was postponed until lunchtime and then until the next morning. The court warned the defendant to be present. Defendant did not appear for two days, sending two messages to the effect that he was attempting to collect money due him for his family. In his absence, the court proceeded with the selection of the jury. The defendant voluntarily surrendered in the afternoon of the second day, when court was no longer in *782session, and was remanded. He apologized to the court the next morning. When he sought to enter the plea, the court stated that the original plea offer would not be considered because of the defendant’s "flagrant disregard of the court’s instructions.” "This court feels that because of the circumstances that have taken place, this court is not bound now to consider any offer of plea on the original terms [one year to life]. All right. Let’s proceed to trial.” After further plea negotiations, the court stated, "Any plea that is accepted here he will have to state on the record that he is voluntarily and I want that understood and I want it understood also that the court can take into consideration all the circumstances surrounding this case is not going to promise this defendant any acceptance of any recommendations of the District Attorney that is not contained a minimum of three to life and that’s the only way that this court will consider any acceptance of any plea.” The defendant then entered a plea with that understanding and subsequently was sentenced to the three-year minimum. The codefendant, a previous felon, who possessed the bulk of the heroin recovered, and whom this defendant appeared to be assisting, had received the same plea and sentence. We do not of course condone the defendant’s failure to appear in defiance of the trial court’s explicit direction, and we appreciate the court’s anger at what occurred and the disruption caused. However, the record makes it clear that defendant received an additional sentence of two years, not on the basis of a full evaluation of his offense in terms of his background, but because of the court’s anger at the two-day absence. We feel the imposition of what amounted to an additional year for each day of absence was not justified under all the circumstances.