Scenario 5:

Question : Defendant, a potential second felony offender, is charged with criminal possession of stolen property in the third degree in violation of PL 165.50, a class D felony. The defense desires to plead to the charge in exchange for a sentence of parole supervision, which the court indicates it is willing to impose. The prosecutor indicates he is opposed to imposition of the so-called "Willard" sentence under any circumstances. He then indicates he will consent to entry of a plea to the attempt to commit the crime, with sentence to be left to the court's discretion. Has the prosecutor made a prudent decision, or an error in judgment?

Answer : An error in judgment.

On accepting the plea to the reduced crime, the court is free to impose a sentence of parole supervision with or without the People's consent. The charged crime is a "specified offense" pursuant to CPL 410.91 for which the sentence of parole supervision is authorized. The attempt to commit that crime is also a specified offense, pursuant to CPL 410.91(5). However, the People's consent to the parole sentence is required only where the sentence is imposed for a class D felony (CPL 410.91(4)). By consenting to the reduction to a class E felony, the prosecutor has ceded to the court the discretion to decide whether the sentence will be imposed.

GungaWeb handles the question like this:

Click on Article 165, then PL 165.50 to retrieve the charge. Scroll down to the Sentences function area, and use the drop-down list controls to select Attempted offense and Second Felony Offender. Click on Sentences to obtain the following Sentencing Report.

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