Scenario 2:

Question : Defendant is charged with burglary in the second degree of a dwelling contrary to PL 140.25(2) and if convicted faces a potential determinate sentence of up to 15 years as a first felony offender. The prosecutor offers a plea to burglary in the third degree with a recommended determinate sentence of 7 years. Is the offer legal?

Answer : The plea offer is illegal.

Since the indictment charges a class C violent felony, defendant must plead to at least a class D violent felony (CPL 220.10(5)(d)(ii)). Burglary in the third degree is a class D felony, however it is not a violent felony under PL 70.02(1). Therefore the offer is illegal. The proposed sentence is also illegal, since for a class D nonviolent felony the authorized prison term is an indeterminate sentence with maximum term between 3 and 7 years, and a minimum term of between 1 year and 1/3 the maximum term (PL 60.01(3)(a), 70.00(1),(2)(d),(3)(b)). A legal plea offer would be to attempted burglary in the second degree, a class D violent felony, which would render the proposed sentence legal as well.

GungaWeb handles the question like this:

Click on Article 140, then PL 140.25 to retrieve the charge. Click on Pleas to obtain a Plea Bargain report as follows:

Return to the charge and click the LIO link for PL 140.25(2) to obtain a list of lesser included offenses.

Observe that the offered plea, burglary in the third degree, is listed as a lesser included offense, class D felony, but not a violent felony. Therefore the plea offer is illegal. Return to the charge and with two clicks prepare a Sentencing Report for a first felony offender convicted of an attempt to commit the charged crime, containing the following possible prison sentences:

With these results in hand, reformulate the proposed disposition so that a just result is achieved, within the law.

Features Menu