| People v McDermott |
| 2009 NY Slip Op 09558 [68 AD3d 1453] |
| December 24, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v BrianK. McDermott, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney (Danielle D. McIntosh of counsel), forrespondent.
Appeal from a judgment of the County Court of Greene County (Pulver, Jr., J.), renderedFebruary 17, 2009, convicting defendant upon his plea of guilty of the crime of criminalpossession of marihuana in the second degree.
In connection with a plea agreement, defendant signed a 12-page document in which, amongother things, he agreed to plead guilty to criminal possession of marihuana in the second degreeas set forth in one count of a superior court information, and purportedly waived the right toappeal. One paragraph of the document stated that if defendant was arrested before sentencing,County Court would not be bound by the sentencing agreement and could sentence him up to themaximum permissible sentence. Prior to sentencing, defendant was arrested for possessing drugsand ultimately pleaded guilty in another court to a related charge. Based on that arrest, the courtdid not impose the one-year sentence included in the plea agreement for the present charge, butinstead imposed an enhanced sentence of 2½ years in prison, followed by one year ofpostrelease supervision. Defendant appeals.
Defendant asserts that County Court improperly enhanced his sentence in violation of theplea agreement. Under the circumstances here, defendant's challenge is not precluded by hiswaiver of appeal (see People v Hastings, 24 AD3d 954, 955 [2005]). Further, althoughdefendant did not properly preserve this issue, we choose to exercise our interest of justicejurisdiction to take corrective action (see id.). A court may enhance an agreed-uponsentence after it is established that the defendant violated a condition of the plea agreement(see People v Bove, 64 AD3d 812, 812-813 [2009]; People v Davis, 30 AD3d893, 894 [2006], lv denied 7 NY3d 847 [*2][2006]).Under People v Parker (57 NY2d 136 [1982]), for a defendant to waive the right to besentenced in accordance with the plea agreement, the court must inform the defendant in somemanner of the right that is at issue and the consequences of failing to abide by the conditions setby the court (id. at 141). The People contend that the one paragraph of the 12-pagedocument constituted a sufficient Parker admonishment concerning the no-arrestcondition. We disagree.
During the plea colloquy here, County Court never mentioned Parker warnings orthe one paragraph in the document that imposed the no-arrest condition. In fact, the court did notdiscuss anything specific about the document whatsoever. The court merely asked defendantwhether the document contained his signature and initials, if he had reviewed it with counsel,and if he had any questions and was willing to plead guilty in exchange for a sentencingpromise.[FN1]This colloquy was simply not sufficient to insure that defendant was fully aware of the adverseconsequences that might flow from his being arrested prior to the imposition of sentence. Thisflaw in defendant's plea allocution was not remedied by the court's incorporation by reference ofthe 12-page affidavit that contained a single paragraph describing the circumstances that couldlead to the imposition of an enhanced sentence (cf. People v Kinch, 15 AD3d 780, 781[2005]; compare People v Bunce, 45 AD3d 982, 984 [2007], lv denied 10 NY3d809 [2008]).[FN2]While written statements or affidavits may serve as a helpful supplement to a colloquy with thecourt concerning a plea or the waiver of certain rights, these writings cannot be substituted foron-the-record discussions between the defendant and the court. Due to the inadequacy of theParker warnings here, we remit for County Court to either impose the agreed-uponsentence or permit defendant an opportunity to withdraw his plea before imposing an enhancedsentence (see People v Armstead, 52 AD3d 966, 968 [2008]).
We take this opportunity to condemn the practice of "plea by check off list." A court'sconstitutional responsibility to review the terms and conditions of the plea agreement, thedefendant's rights and those rights that the defendant is giving up and the concomitantresponsibility to ascertain that the defendant understands them and is knowingly, intelligentlyand voluntarily waiving them must appear "on the face of the record" (People v Lopez, 6NY3d 248, 256 [2006]; see People v Callahan, 80 NY2d 273, 280 [1992]; People vSeaberg, 74 NY2d 1, 11 [1989]; People v Selikoff, 35 NY2d 227, 244 [1974]).These weighty matters should not be merely relegated to a lengthy written document, but mustbe developed in an appropriate manner on the record.
Mercure, J.P., Spain, Kane, Kavanagh and Garry, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by vacating the sentence imposed;matter remitted to the County Court of Greene County for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.
Footnote 1: Although defendant does notchallenge the plea itself, given the utter lack of substance during the colloquy, it was insufficientto adequately constitute a knowing, intelligent and voluntary plea or waiver of appeal.
Footnote 2: We note that defendant initialedconflicting paragraphs indicating both that he could and could not read the English language. Hefurther initialed a paragraph waiving any right to contest "the above-stated predicateconviction[s]" notwithstanding his lack of any prior felony conviction and an X through theprevious paragraph discussing predicate convictions. County Court did not address these blatantinconsistencies during the colloquy.