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Lighter sentence upheld in DA-judge dispute

By: Denise M. Champagne//November 17, 2014

Lighter sentence upheld in DA-judge dispute

By: Denise M. Champagne//November 17, 2014//

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A Cayuga County judge did not violate the law when he sentenced a drug defendant to one year less than what the district attorney thought was an agreed-upon sentence.

The Appellate Division, Fourth Department on Friday unanimously ruled in favor of Cayuga County Court Judge Thomas G. Leone in an Article 78 challenge brought by District Attorney Jon E. Budelmann.

Judge Leone was represented by Frank Brady of the Office of Attorney General Eric T. Schneiderman, which declined to comment.

“I think to some degree, this is miscommunication,” said Cayuga County Chief Assistant District Attorney Christopher T. Valdina, who represented Budelmann.

The matter centers around Adam C. Smith, a Syracuse man arrested for selling drugs in Auburn. He was charged in two separate indictments and pleaded guilty to third-degree criminal sale of a controlled substance, fourth-degree conspiracy and third-degree criminal possession of marijuana to satisfy both indictments.

Prior to the plea, according to the decision, Judge Leone told Smith his “agreed-upon sentence” would be “no worse than six years.” When placing the terms on the record, the judge told Smith the deal worked out between his attorney and the district attorney called for “a cap of six years” in state prison and then sentenced him to a determinate term of five years in state prison.

Budelmann, more than a week after Smith began servicing his sentence, filed the Article 78 challenge seeking to vacate Smith’s plea and return the matter to pre-plea status when Smith was facing all charges in both indictments.

Budelmann, according to court documents, claimed the plea deal was specifically conditioned on Smith getting a six-year prison term and that Judge Leone violated Criminal Procedure Law Section 220.10 (4)(a) when he sentenced Smith to less.

The section provides “where the indictment charges two or more offenses in separate counts, the defendant may, with both the permission of the court and the consent of the people, enter a plea of a) guilty of one or more, but not all of the offenses charged.”

Judge Leone contended the district attorney was seeking relief in the nature of prohibition; that he was trying to prevent him from imposing the sentence he did. Judge Leone argued the point was moot because Smith had already been sentenced.

The Appellate panel, in Matter of Budelmann v. Leone (2014 NY Slip Op 07797), rejected his argument, found Budelmann was actually seeking relief in the nature of mandamus in that he was trying to compel Judge Leone to vacate Smith’s plea and then rejected that and dismissed Budelmann’s petition.

Valdina said Smith was running drugs from Syracuse to Auburn. He said he was offered a lighter sentence in exchange for his cooperation in the investigation against co-defendants, but that he did not cooperate.

Valdina said he and Budelmann thought the sentence cap and floor were the same. He said, in his view, Judge Leone should have said he was uncomfortable with the plea deal. Instead, Smith ended up being sentenced to the term he was offered had he cooperated.

Valdina argued the counts were not properly satisfied, but the Appellate Division panel rejected that, as well as Budelmann’s alternate request to dispose of three counts of the first indictment. The panel found that was barred by double jeopardy and CPL 220.30 (2) which says “The  entry  and  acceptance  of  a  plea  of guilty to part of the indictment constitutes a disposition of the entire indictment.”

“On the merits, we dismiss the petition,” the panel noted in the unsigned decision. “The extraordinary remedy of mandamus “is never granted for the purpose of compelling the performance of an unlawful act,” Matter of Council of City of New York v. Bloomberg, 6 NY3d 380, quoting Matter of People ex rel. Sherwood v. State Board of Canvassers, 129 NY 360.

The panel pointed out the Court of Appeals has repeatedly held courts have no statutory or inherent authority to vacate a plea, over the defendant’s objection, after the judgment has been entered and sentenced started.

“Thus mandamus does not lie here because we cannot compel respondent to exceed his statutory and inherent authority by directing him to vacate a plea taken in violation of CPL 220.10 (4)(a) after the commencement of sentence,” the panel found. “Furthermore, ‘restoring the matter to its pre-plea status,’ as petitioner seeks, would violate defendant’s constitutional protections against double jeopardy.”

The panel also found the record did not support Budelmann’s contention that the plea was premised on the condition of a six-year sentence, noting at the time the plea was discussed before the court, that Budelmann described the agreement as “six years at the moment,” indicating it could be “moved downward from that” based upon off-the-record discussions.

The panel found that consistent with Judge Leone’s recitation of an “agreed-upon sentence of no worse than six years.” The panel also points out Budelmann did not object when Smith was told the plea deal called for a “cap of six years” or try to withdraw his consent to the plea or that it was conditioned on the imposition of a six-year sentence.

The panel consisted of Justice John V. Centra, presiding, and Justices Eugene M. Fahey, Gerald J. Whalen and Brian F. DeJoseph.

Valdina said the fact that Smith had pleaded guilty to conspiracy “took the wind out of his sails” in arguing against double jeopardy because the drug sales, although separate incidents, were incorporated together and Smith’s plea satisfied all counts against him in Cayuga County.

The concern was in cases with a victim, the victim being told prosecutors could secure a particular sentence and then having the judge go back on the agreement.

Valdina said no determination has been made on whether to seek leave to the Court of Appeals, but noted it does not have factual review power which is what the Appellate Division’s decision was based upon.

He added that Smith is appealing his sentence.

Smith, 28, is housed at the Hale Creek Alcohol and Substance Abuse Correctional Treatment Center in Fulton County.

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