People v. Smith ( 1996 )

Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered January 20, 1994, convicting defendant, upon his plea of guilty, of two counts of burglary in the third degree, and sentencing him, as a second felony offender, to consecutive terms of 2 to 4 years, unanimously affirmed.

The sentencing court properly refused to allow defendant to withdraw his plea of guilty. Although the plea was induced by a promise of a sentence that was illegal, i.e., too lenient, for a second felony offender, defendant’s status as-such was unknown to the court at the time it accepted the plea only because defendant had misrepresented his true name. Defendant should not be permitted to benefit from the fraud he perpetrated (People v Floyd, 177 AD2d 310, 313, lv denied 79 NY2d 947), especially where he had failed to appear for his scheduled placement in the Court Employment Project and remained a fugitive until involuntarily returned to court two years later on, a warrant. In fact, defendant had violated all four conditions of his plea — reporting for court dates, completing the program, cooperating with the Probation Department, and staying out of trouble with the law. Concur—Rosenberger, J. P., Ellerin, Nardelli, Williams and Tom, JJ.