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New York Legal Information Topics, Discussions and Information relating to Legal Information specific to the State of New York. This information is *NOT PROFESSIONAL* and should always be fact-checked!

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  #1  
Old 11-13-2014, 07:44 PM
Liana'sMom Liana'sMom is offline
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Default Plea deal, amount of time offerered, Judge has ability to refuse plea when?

My husband agreed to accept the plea deal of 1 1/2 - 3 years that was offered to him by the D.A. However, I know the Judge can Refuse to accept that amount of time & sentence him to More time because that was done to my husband in the past. At that time he was Forced to take more time because he had Already pled guilty thinking he was getting the amount of time he agreed to accept. What I'm forgetting is When that could happen, when he accepts the plea which would be next week Or at sentencing which would be at the beginning of January after the presentencing report is completed. Is it Legal for the Judge to Force him to take more time on a plea than he was Promised by the D.A.? He was told by his lawyer who is no longer speaking to me that the D.A. is Promising that he Won't get More than 1 1/2 - 3 years.

Thank you for any help/information/advice you all can give me.

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Old 11-13-2014, 08:09 PM
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Yes, at sentencing after the PSI report, the judge can accept or not accept the plea. The DA can't promise what the judge will or won't do. Yes it is legal for the judge to not accept the DA's recommendation and go with what the statute allows.
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Old 11-13-2014, 10:14 PM
Liana'sMom Liana'sMom is offline
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I don't know, Maybe my husband's lawyer Meant Without Explaining it right that that Is the maximum my husband can get on the charge he would be pleading too, 1 1/2 to 3, I'm Not Sure.
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Old 11-14-2014, 05:39 AM
CenTexLyn CenTexLyn is offline
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Generally speaking, if the bench is rejecting the negotiated plea, the Defendant has the right to withdraw their plea and proceed to trial. Of course, that also puts the entire sentencing range on the table since juries are limited to none of the prior discussions.
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Old 11-14-2014, 10:09 AM
Liana'sMom Liana'sMom is offline
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That's what my husband's lawyer said CenTexLyn before he stopped communicating with me. I want to know if that Does happen that the Nudge wants to reject the deal & offers him more tine if he could be given some time (like a week) whether to accept it or not because I Know he would want to talk to me before accepting it. The way our visits & calls are it Could take S veral days at Least for is to talk about it & for him to make up his mind. However, when I his happened to him before he was upset and I Don't believe he was given the opportunity to withdraw his plea. But Anyway I wanted to state this plea of 1 1/2 - 3 is being offered by the D.A. from the Major Crimes Bureau.
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Old 11-15-2014, 12:13 PM
CenTexLyn CenTexLyn is offline
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How much time may elapse is dependent upon the jurisdiction. But if he withdraws his plea, then the case has to be set on the docket and subpoenas issued for the witnesses for both State and defense. The State is NOT going to be ready to proceed to trial that very same day the case was set for a plea.

When he signed the negotiated plea document, it contains his rights in the event that the plea offer is not able to be fulfilled. The only time the sentencing is entirely in the hand of the judge on a plea negotiation is where there is an open plea of guilty. In those cases, the State may propose a cap or it may simply be capped by the maximum for the class of offense for which the sentence is contemplated. At no time is the judge obligated to say "I am not accepting the offered number- would you still like to proceed." If the Defendant (through counsel) fails to object and assert the right to withdraw the plea so that it moves forward to trial, then their silence is construed as a waiver of the right.
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Old 11-15-2014, 07:51 PM
Liana'sMom Liana'sMom is offline
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CenTexLyn, if my husband withdraws his Promise of a plea this week then his lawyer said the trial wouldn't be until like September because that's how long it takes to get a trial date. What do you mean by an "open plea of guilty"? Here in NY (since it was done to my husband before) And in Missouri (where my BFF is and it was done to Her husband Too) the Judge Can reject the deal with the D.A. Not the charge but the Deal as to the amount of time agreed to. No client is Allowed to speak when they have an attorney And his attorney has Already gone against my husband's wishes as he waived his 180/80 Twice. He Could have been home Two Different Times Already! I have been in courtrooms on Numerous occasions and when a defendant Attempts to speak when they have an attorney & they Always get yelled at by the Judge. The exception is when tr Judge Directly asks the defendant questions.

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Old 11-15-2014, 08:34 PM
CenTexLyn CenTexLyn is offline
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open plea is something that we see often in Texas and I presume it exists elsewhere...it describes those cases where there is no agreed recommendation on punishment and the Defendant is pleading guilty knowing ONLY what the upper limit on punishment might be- they could get anything from probation to the maximum term. In some instances, there is a recommendation on the cap, meaning that the Court can impose anything up to that cap and still be consistent with the plea.

I'm not sure what you mean by 180/80 since that is not a phrase/term we use in Texas. If it was just a standard pre-trial proceeding, there is rarely anything to be gained by NOT waiving. If anything, it often inconveniences the Defendant more than anyone since they are stuck in holding at the courthouse for most of the day for what would have been a three-minute (if that) proceeding that is a mere formality.
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Old 11-15-2014, 09:50 PM
Liana'sMom Liana'sMom is offline
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Thank God they Don't do open pleas in NY (or at Least I Never Heard of it being done). 180/80 I believe is where the D.A. has Only so much time to bring the case to the Grand Jury or Else they have to release the defendant & then the D.A. has more time to present the case to the Grand Jury. So if they Don't waive it & that amount of time has passed the defendant can be released. My husband could have been released Twice If his attorney Hadn't waived his 180/80. He Would have been released at the Courthoise Whichever day If his artorney did Not waive his 180/80 and the courthouse is closer to me than the jail so I probably could have got my Dad to take me to pick him up. (At Least One of those days I was out grocery shopping with my Dad in the area. This was Before my Dad went to the hospital yesterday. He's going to be there at Least a week, he has heart & kidney failure & when he got there yesterday morning he couldn't breathe, 15 people were working on him then. So I Hope Everything's okay with him.)
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