People v Ortiz, 2024 NY Slip Op 00245 [223 AD3d 539]

January 18, 2024

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Robert Ortiz, Appellant.

Caprice R. Jenerson, Office of the Appellate Defender, New York (Samuel Steinbock-Pratt of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Robert Butlien of counsel), for respondent.

Judgment, Supreme Court, New York County (Steven M. Statsinger, J.), rendered March 18, 2019, convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 3 1/2 to 7 years, to run concurrently with sentences imposed under indictment Nos. 3218/17 and 3009/16, unanimously modified, on the law, to the extent of reducing the sentence to three to six years, and otherwise affirmed.

Defendant pleaded guilty in exchange for a promised sentence of 3 1/2 to 7 years, to run concurrently with a longer nine-year term previously imposed under indictment No. 3218/17. The record is clear that defendant pleaded guilty to avoid additional prison time beyond a nine-year sentence. Subsequently, defendant was resentenced to a term of six years in the prior matter. Because the reduction of the preexisting sentence nullified a benefit that was expressly promised and that materially induced defendant’s guilty plea, defendant is entitled to withdraw his plea ( see People v Pichardo , 1 NY3d 126 , 129 [2003]; see also People v Rowland , 8 NY3d 342 , 345 [2007]). Defendant, however, seeks a reduction of his sentence to three to six years’ imprisonment rather than vacatur of the plea. The People consent to this relief. Accordingly, we reduce defendant’s sentence to three to six years ( see CPL 470.20; People v LaSalle , 95 NY2d 827, 829 [2000]). Concur—Kern, J.P., Friedman, González, Shulman, JJ..