The appellant in in People v Magliocco (2010 NY Slip Op 08471 [4th Dept 11/19/10]) urged that where the court below had informed defendant during the plea proceeding that it would not be obligated to impose the promised sentence, pending its review of the presentence report, and at sentencing the court informed defendant that it was enhancing the sentence based upon that review" the court had "erred in imposing an enhanced sentence without affording him an opportunity to withdraw his plea."

The Appellate Division, Fourth Department, rejected the argument that the defendant had to be given an opportunity to withdraw his plea before the court could enhance the sentence, not for a violation of a condition of the plea, but upon review of the PSI report. First, the Court held that by "failing to object to the enhanced sentence or to move to vacate his plea, defendant failed to preserve his contention for our review." That isn't unusual or the reason for this posting. It is the next sentence in the decision, however, that is an eyeopener: "In any event, "there was no need for [the court] to afford defendant an opportunity" to withdraw the plea before imposing an enhanced sentence inasmuch as the court was not bound by the plea promise upon reviewing the presentence report (People v Figgins, 87 NY2d 840, 841)."

In People v Figgins (87 NY2d 840 [1995]) the Court of Appeals held that "Defendant's failure to appear in court on the scheduled sentencing date constituted a violation of the plea agreement. Therefore, Supreme Court was no longer bound by the plea promise and could properly impose an enhanced sentence."

The question is how does that holding that a defendant who violates a condition of a plea permits a court to impose a higher sentence without affording defendant a chance to withdraw the plea applicable to the issue presented in Magliocco in which the defendant was not alleged to have violated a condition of the plea.

Long ago, in People v Selikoff (35 NY2d 227 [1974]) the Court of Appeals, after noting that "any sentence ‘promise’ at the time of plea is, as a matter of law and strong public policy, conditioned upon its being lawful and appropriate in light of the subsequent presentence report" held hat if upon reviewing a PSI report and learning more about the crime and the defendant the court felt that a greater sentence than promised, the defendant is "entitled to receive" an opportunity to withdraw the plea "since the foundation for the plea, regardless of fault, had proven to be without substance" One wonder how can one reconcile this holding of the Court of Appeals with that of the Fourth Department in Magliocco. One also wonders if 95 percent of all defendants will continue to enter guilty pleas if the court are not bound by their sentence promise and the defendants cannot withdraw their pleas if a higher sentence is imposed than set forth in the plea bargain.