| People v Lumpkin |
| 2022 NY Slip Op 00477 [201 AD3d 1257] |
| January 27, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Quadeer Lumpkin, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), renderedJuly 15, 2019, convicting defendant upon his plea of guilty of the crime of criminal possession ofa controlled substance in the fifth degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal possession ofa controlled substance in the fifth degree and waived his right to appeal. County Court sentenceddefendant, a second felony drug offender with a prior violent felony conviction, to a prison termof three years followed by two years of postrelease supervision. Defendant appeals.[FN*]
Defendant contends that his plea was not knowing, voluntary and intelligent due toinconsistent representations during the plea proceedings with respect to the sentence to beimposed. Although defendant's contention, which survives his unchallenged waiver of the rightto appeal, is not preserved for our review due to the lack of an appropriate postallocution motion(see People v Blankenbaker, 197AD3d 1353, 1354 [2021]), we nevertheless exercise our interest of justice jurisdiction totake corrective action. A review of the plea proceeding reflects that, when the terms of the pleaagreement were placed on the record, it was stated that the prison term to be imposed would betwo years. County Court then, in discussing defendant's second felony offender status, stated thatthe prison term was three years but, thereafter, informed defendant that, if he violated any jailrules prior to sentencing, it would not be bound by the promise of a two-year prison term. Therecord does not reflect that there was any clarification or correction regarding the misstatementsas to the agreed-upon sentence either during the plea colloquy or at sentencing before a three-yearprison term was imposed. As "[t]he record thus fails to reveal that defendant was accuratelyadvised of the essential terms and conditions of the plea agreement" (People v Lacroix, 133 AD3d 1095,1096 [2015]), we find that his plea was not knowing, voluntary and intelligent.
Garry, P.J., Egan Jr., Clark, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is reversed, as a matter of discretion in the interest of justice, and matter remitted to theCounty Court of St. Lawrence County for further proceedings not inconsistent with this Court'sdecision.
Footnote *:When this matter was previouslybefore us, we rejected counsel's Anders brief, withheld decision and assigned newcounsel to represent defendant on appeal (190 AD3d 1195 [2021]).