| People v George |
| 2009 NY Slip Op 01365 [59 AD3d 858] |
| February 26, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Paul H.George, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Kane, J. Appeals from a judgment of the County Court of Franklin County (Main Jr., J.),rendered December 3, 2007, convicting defendant upon his plea of guilty of the crimes ofcriminal possession of marihuana in the third degree and criminal possession of stolen propertyin the fourth degree.
In March 2004, defendant was convicted of criminal possession of marihuana in the thirddegree and sentenced to five years of probation. Defendant's probation was revoked in April2007, at which time he was resentenced to 365 days in jail. In the interim, defendant was chargedin two separate indictments with criminal possession of marihuana in the second degree, criminalpossession of a weapon in the fourth degree and criminal possession of stolen property in thefourth degree. Pursuant to a negotiated agreement, defendant pleaded guilty to criminalpossession of marihuana in the third degree and criminal possession of stolen property in thefourth degree in full satisfaction of both indictments and in exchange for prison terms of1½ years plus one year of postrelease supervision on the drug charge and 1½ to 3years on the stolen property charge, with those sentences to run concurrently. Defendant alsowaived his right to appeal. Although County Court subsequently sentenced defendant as asecond felony offender to the promised prison terms, it ordered that the negotiated sentences runconsecutive to any undischarged sentence that defendant owed on the prior probation violation.Defendant now [*2]appeals, contending that the failure to advisehim that the negotiated sentences would run consecutive to the undischarged sentence warrantsvacatur of his plea.
We agree. Preliminarily, defendant's challenge to the voluntariness of his plea is notprecluded by his waiver of the right to appeal (see People v Walker, 47 AD3d 965, 966 [2008]). Further, becausedefendant was not apprised prior to sentencing that his negotiated sentences would runconsecutive to his undischarged sentence, his challenge to "the validity of his plea is notprecluded due to his failure to raise this issue in a postallocution motion" (People v Tausinger, 55 AD3d956, 957 [2008]; cf. People vLouree, 8 NY3d 541, 545-546 [2007]; People v Rivera, 51 AD3d 1267, 1269 [2008]).
Turning to the merits, "a knowing, intelligent and voluntary guilty plea requires that adefendant be informed as to the full extent of the exposure he faces upon sentencing" (Peoplev Tausinger, 55 AD3d at 957). The record reflects that no mention of the undischargedsentence was made at defendant's plea allocution or at any point prior to sentencing. Becausedefendant was unaware of the full extent of his exposure, we reverse the conviction and vacatethe plea (cf. People v Rivera, 51 AD3d at 1269-1270; People v Bobo, 41 AD3d 129,129-130 [2007], lv denied 9 NY3d 873 [2007]; People v Smith, 279 AD2d 487[2001]).
Mercure, J.P., Peters, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isreversed, on the law, plea vacated, and matter remitted to the County Court of Franklin Countyfor further proceedings not inconsistent with this Court's decision.