Saturday, January 3, 2009

Another Reminder of the Danger of Appealing After a Guilty Plea

In two related appeals, the defendant in People v Tuszynski (2008 NY Slip Op 10264 [12/31/08]) and (2008 NY Slip Op 10265 [12/31/08]) challenged the consecutive sentences he received pursuant to a plea bargain for two DWI convictions stemming form the same drive, at different times. The court agreed with the defendant that
the sentences of two consecutive terms of imprisonment of 1 to 4 years are illegal on the ground that his operation of a motor vehicle while intoxicated consisted of a single, continuous act. Penal Law § 70.25 (2) requires that sentences imposed for two or more offenses must run concurrently when the offenses are 'committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.'

However, the remedy for this illegality is not an order that the sentences run concurrently. Instead, inasmuch as defendant's sentence in each appeal was imposed pursuant to a plea agreement, the Court remitted each matter to County Court to resentence defendant or to "entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety."

Before attacking a plea or a bargained for sentence on grounds that it was unlawful, counsel must warn clients that winning the appeal might result in the plea being vacated and their going to trial.

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