| People v Bennett |
| 2009 NY Slip Op 01834 [60 AD3d 478] |
| March 12, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v James Bennett, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jaime Bachrach of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 15, 2007,as amended October 30, 2007, and as further amended July 29, 2008, convicting defendant, uponhis plea of guilty, of attempted burglary in the second degree, and sentencing him to a term ofseven years, unanimously reversed, on the law, the plea vacated, the full indictment reinstated,and the matter remanded for further proceedings.
Before defendant pleaded guilty, the prosecutor asserted that defendant was a second felonyoffender based on a New Jersey conviction. Defense counsel did not challenge that assertion, andfollowing defendant's guilty plea he was sentenced, as a second felony offender, to a term ofseven years with five years' postrelease supervision (PRS). Subsequently, by way of a CPL440.20 motion to set aside sentence, defendant established that his New Jersey conviction did notqualify as a New York felony. At his ultimate resentencing, defendant moved to withdraw hisplea as involuntary, claiming he had been misinformed as to his status and potential sentencingexposure. The resentencing court denied the motion, and imposed the same prison term asoriginally imposed, but this time with a PRS period of three years.
The plea withdrawal motion should have been granted. While defendant's ultimate sentencewas actually less (with regard to PRS) than the one he bargained for, "[a]t the time defendantpleaded guilty, [h]e did not possess all the information necessary for an informed choice amongdifferent possible courses of action . . . Accordingly, defendant's decision to pleadguilty cannot be said to have been knowing, voluntary and intelligent." (People v Van Deusen, 7 NY3d744, 746 [2006].) To the extent the People are arguing that defendant would have still [*2]have accepted a disposition involving a seven-year prison term hadhe known he was only a first felony offender, that argument is speculative.Concur—Mazzarelli, J.P., Friedman, Gonzalez, Catterson and Renwick, JJ.