People v Barnes

2019 NY Slip Op 53934 [177 AD3d 1168]

November 27, 2019

Appellate Division, Third Department

As corrected through Wednesday, January 1, 2020

[*1]

The People of the State of New York,Respondent, v Kawaun Barnes, Also Known as Shawn,Appellant.

Marshall Nadan, Kingston, for appellant.

P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.

Pritzker, J. Appeal from a judgment of the Supreme Court (McDonough, J.),rendered February 9, 2017 in Albany County, convicting defendant upon his plea ofguilty of the crime of criminal sale of a controlled substance in the third degree.

In satisfaction of a two-count indictment and another uncharged crime, defendantpleaded guilty to criminal sale of a controlled substance in the third degree and waivedhis right to appeal. Under the terms of the plea agreement, he was to be sentenced as asecond felony offender to a determinate prison term of between two and eight years,followed by a period of postrelease supervision of between 11/2 and 3years. During the plea proceedings, Supreme Court provided defendant with a writtenParker admonishment and explained that "it basically tells you the bad things thatcan happen should you fail to appear here in court" for sentencing, without mentioningthat an enhanced sentence was one of those consequences. Defendant failed to appear incourt on the sentencing date and a bench warrant was issued for his arrest. He wasarrested and was later returned to court for sentencing. At that time, Supreme Courtadvised defendant that it was imposing an enhanced sentence based upon his failure tocomply with the terms of the Parker admonishment and proceeded to sentence him to a prison term of 10years, followed by three years of postrelease supervision. Defendant appeals.

Defendant contends that Supreme Court erroneously imposed the enhanced sentencegiven that it did not specifically inform him as part of the Parker admonishmentthat a consequence of failing to appear for sentencing was the imposition of a greatersentence.^[FN*]Thisclaim is unpreserved inasmuch as the record does not reveal that defendant objected tothe enhanced sentence or moved to withdraw his guilty plea (see People v Bennett, 143AD3d 1008, 1009 [2016]; People v Tole, 119 AD3d 982, 984 [2014]). The lack ofpreservation, however, is attributable to the deficiencies of defendant's trial counsel, whorepresented him both during the plea proceedings and at sentencing. Counsel wasineffective in failing to challenge the enhanced sentence as there was no strategic reasonfor failing to do so, particularly in light of the clear omissions that were made bySupreme Court in administering the Parker admonishment (see People v Hunter, 173AD3d 1249, 1251 [2019], lv denied 34 NY3d 933 [2019]). In view of this,we excuse the lack of preservation and address the merits (see id. at 1252; People v Rushlow, 137 AD3d1482, 1483 [2016]). The record reveals that Supreme Court did not providedefendant with a sufficient Parker admonishment that included the sentencingconsequences and that it imposed the enhanced sentence without affording him anopportunity to withdraw his plea. Accordingly, we vacate the sentence and remit thematter to Supreme Court to either impose the agreed-upon sentence or provide defendantwith an opportunity to withdraw his guilty plea (see People v Hunter, 173 AD3dat 1252; People v Rushlow, 137 AD3d at 1484).

In view of the foregoing, we need not address defendant's remaining claims.

Garry, P.J., Clark, Mulvey and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is modified, on the law, by vacating the sentence imposed; matter remitted tothe Supreme Court for further proceedings not inconsistent with this Court's decision;and, as so modified, affirmed.

Footnote *:We note that suchchallenge is not precluded by defendant's waiver of the right to appeal (see People v Castro, 170 AD3d1286, 1287 [2019], lv denied 33 NY3d 1029 [2019]; People v Hall, 78 AD3d1328, 1328 [2010]).