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AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN.

The First Department, in a case remitted by the Court of Appeals, in a full-fledged opinion by Justice Tom, over a two-justice dissent, determined defendant’s challenge to the legality of his sentence would not be reviewed in the interest of justice. Defendant had been promised a three-year sentence, but was not eligible for a sentence less than six years. In violation of his plea agreement, defendant committed a crime while awaiting sentence. As a result the three-year promise was properly withdrawn and a six year sentence imposed. The Court of Appeals held that defendant’s failure to object based upon the illegal three-year sentence promise precluded appeal to the Court of Appeals. However, upon remittal, the Appellate Division could consider the question if it exercised its interest of justice jurisdiction (which the majority declined to do):

… [T]here is nothing rare or unusual about this case or this defendant. The plea proceedings do not raise a concern about defendant’s guilt. Defendant was advised of the rights he was waiving by pleading guilty and affirmed he was pleading guilty of his own free will. Defendant was represented by counsel and received a favorable sentence. Finally, defendant violated the plea agreement by committing another crime and the final sentence imposed was both legal and within the range announced by the court. Nor has defendant presented anything to demonstrate that his case is extraordinary. These facts, coupled with defendant’s failure to preserve the issue for review, fail to support the exercise of our discretion to review in the interest of justice, and militate against such exercise. People v Williams, 2016 NY Slip Op 07102, 1st Dept 10-27-16

CRIMINAL LAW (AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)/SENTENCING (AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)/APPEALS (AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)/INTEREST OF JUSTICE JURISDICTION (CRIMINAL APPEALS, AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)

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