Opinion
April 8, 1988
Appeal from the Onondaga County Court, Cunningham, J.
Present — Doerr, J.P., Denman, Boomer, Green and Lawton, JJ.
Judgment unanimously reversed on the law, plea vacated and matter remitted to Onondaga County Court for further proceedings on the indictment. Memorandum: After defendant had been sentenced for burglary in the first degree as a predicate felony offender (see, People v. Christian, 139 A.D.2d 896), the court informed defendant that, if he entered a plea of guilty to an outstanding charge of criminal contempt, the court would sentence him to a term of 1 1/2 to 3 years to be served concurrently with the sentence just imposed. However, he told him that if he chose to go to trial, "I have to tack 1 1/2 to 3 years on top of the sentence I have just imposed * * * If you go to trial, I have to do it consecutive, it is up to you. It makes it 1 1/2 on top of that, 7 1/2 to 15." Defendant then agreed to plead guilty to criminal contempt in the first degree and was sentenced to a concurrent term of 1 1/2 to 3 years.
A defendant may not be induced to plead guilty by the threat of a heavier sentence if he decides to proceed to trial (see, People v. Elfe, 18 N.Y.2d 601; People v. Glasper, 14 N.Y.2d 893; People v. Picciotti, 4 N.Y.2d 340). "To capitulate and enter a plea under a threat of an `or else' can hardly be regarded as the result of the voluntary bargaining process between the defendant and the People sanctioned by propriety and practice" (People v Picciotti, supra, at 344). Here, in offering defendant alternatives, the court misstated the law. If defendant had gone to trial on the contempt charge and been found guilty, it would have been within the court's discretion to sentence him concurrently with the sentence just imposed on the burglary (Penal Law § 70.25). The explicit threat of a higher sentence was coercive and requires that the plea be vacated.