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Defendant Contends He Was Improperly Sentenced in Grand Larceny Offense

This is a proceeding brought pursuant to Article 78 of the CPLR to prohibit respondent Covington, a Justice of the Supreme Court, Bronx County from vacating petitioners’ convictions and the sentences imposed thereon in violation of Article 440 of the Criminal Procedure Law, and to prohibit respondents J.C. and P.G., District Attorney, Bronx County, from further prosecution of the petitioners on felony charges.

A New York Criminal Lawyer said on July 7, 1987 petitioners pleaded guilty to attempted grand larceny in the third degree. All parties apparently thought that defendants were pleading guilty to an “E” felony, since grand larceny in the third degree is a “D” felony. Accordingly, defendant Wilson was sentenced as a predicate felon to 1 1/2 to 3 years in prison.

A Bronx Grand Larceny Lawyer said that, attempted grand larceny in the third degree became a “D” felony on November 1, 1986. At the time of the commission of the acts alleged in the indictment, May 14, 1986, grand larceny in the third degree was an “E” felony and attempted grand larceny in the third degree an “A” misdemeanor. Thus, the defendant was improperly sentenced to felony time that is 1 1/2 to 3 years in prison. A Bronx Grand Larceny Lawyer said that, petitioner W. commenced his sentence. Following the discovery of the error, the trial court vacated the sentence and conviction and reinstated the original felony charges. On February 23, 1988 this court granted a stay of the prosecution pending determination of this Article 78 proceeding.

The issue in this case is whether the trial court erred in vacating the sentence and conviction and reinstated the original felony charges of Petitioner W.

The Court said that, petitioners have properly sought redress through a writ of prohibition where the claim is that a fundamental constitutional right, i.e., the right against double jeopardy, is involved, and the harm caused could not be adequately redressed through ordinary channels of appeal. Where a trial court had vacated a defendant’s plea and sentence, and had reinstated the charges in the criminal indictment, a writ of prohibition was found to be a proper remedy.

Here a Brooklyn Criminal Lawyer the trial court erred in vacating the plea and reinstating the original charges in the indictment. “After sentence has commenced, a court which has accepted a plea in violation of the Criminal Procedure Law may not vacate the illegal plea and reinstate the original charges”. There being no basis for the court’s vacatur of defendants’ pleas, the original pleas to the “A” misdemeanor must be reinstated and the sentences conformed thereto. Once the sentences had commenced, any further prosecution of this matter was barred by the double jeopardy provisions of the state and federal constitutions.

Accordingly, the Court ordered that, the order, Supreme Court, Bronx County (George Donald Covington, J.), entered October 23, 1987, which vacated a judgment, entered July 29, 1987 (George Donald Covington, J. at the plea and Gerald Sheindlin, J. at the sentence) convicting defendant Donald Wilson, true name Donald Willis, upon his plea of guilty, of attempted grand larceny in the third degree and sentencing him to an indeterminate term of 1 1/2 to 3 years in prison, and which reinstated the original charges contained in the indictment, reversed, on the law and the facts, without costs, the order of October 23, 1987 vacated, the respondents prohibited from pursuing further criminal proceedings on the original felony charges contained in the indictment, the judgment of July 29, 1987 reinstated and the matter remanded for resentencing of petitioner Wilson as a misdemeanor offender. The cross-motion insofar as it seeks to dismiss the petition as to defendant Wilson is denied.

The cross-motion, insofar as it seeks to dismiss the petition as to Kevin Burke, true name Burnice Campbell, is granted, without costs, without prejudice to a renewal of the petition which shall include the minutes and order of November 24, 1987 where, it is alleged, on information and belief, the original charges were reinstated against said defendant.

A New York Sex Crimes Lawyer said that the rule is that, after sentence has commenced, a court which has accepted a plea in violation of the Criminal Procedure Law may not vacate the illegal plea and reinstate the original charges. If you are involved in a similar situation, seek the legal advice of a Bronx Grand Larceny Attorney and/or Bronx Criminal Attorney at Stephen Bilkis and Associates, in order to protect your constitutional rights. Call us for free consultation.

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