THE AGREEMENT WHICH PROMPTED DEFENDANT’S GUILTY PLEA WAS SUBSEQUENTLY DETERMINED TO BE ILLEGAL BECAUSE IT PROMISED PROBATION FOR A D FELONY; ONCE IT WAS CLEAR DEFENDANT MUST BE SENTENCED TO INCARCERATION, THE JUDGE GAVE THE DEFENDANT THE OPTION TO WITHDRAW HIS PLEA, WHICH HE DECLINED TO DO; SENTENCE AFFIRMED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, affirming the Appellate Division, determined defendant’s guilty plea should not be vacated. Defendant unsuccessfully argued that the plea agreement had not been honored by the prosecutor. The plea agreement was unenforceable because it called for an illegal sentence—probation for a D felony. Once it was clear defendant must be sentenced to incarceration, the judge gave defendant the option of withdrawing his guilty plea, which he declined to do. The opinion is fact-intensive and cannot be fairly summarized here. People v Flesch, 2026 NY Slip Op 03258, CtApp 5-26-26