| People v McAlpin |
| 2009 NY Slip Op 08957 [68 AD3d 431] |
| December 3, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v ChrisMcAlpin, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered August 28,2007, convicting defendant, upon his plea of guilty, of robbery in the second degree, andsentencing him to a term of 3½ years followed by five years' postrelease supervision,reversed, on the law, the plea vacated, the full indictment reinstated and the matter remanded forfurther proceedings.
On the day of defendant's plea to robbery in the second degree, based on an allocution thathe and his friends had repeatedly punched the complainant and stolen his portable PlayStation,the terms of the plea as stated on the record were that defendant would receive a "deferredsentence" with a possibility of probation and youthful offender treatment, if defendantenrolled in and successfully completed a Fortune Society program. However, if he failed to doso, or if he got arrested for another crime in the interim, he was told, he would be sentenced to aminimum of three years and a maximum of 15 years.
Seven months later defendant was in court for sentencing, having been rearrested twice andhaving failed to successfully complete the Fortune Society program. The sentencing courtremarked that the People had previously requested a term of 3½ years if imprisonment wasrequired, and the People continued to recommend that term. When defense counsel protestedabout the "raise" in the term being imposed, the court said, "It's not a raise. Just to remind you,the plea agreement he pled guilty to on January 2, 2007, he pled to robbery in the second degreewhich is a Class C Violent Felony offense. I advised him that I would place him on this InterimProbation Sentence; and if he was successful, he would get YO and probation. However, theminimum sentence being 3-1/2 years, I told him that if he was not successful he will have to goto prison for 3-1/2 years and, of course, 5 years of Post-Release Supervision." Defense counselsaid, "Yes; I remember that, Judge."
Notwithstanding the court's assertion at sentencing that defendant was informed at the timeof the plea that his sentence would include the postrelease supervision component, and [*2]defense counsel's agreement, in the absence of any mention in theplea minutes of postrelease supervision, we are unable to conclude that defendant was timelyinformed of it.
When a defendant pleads guilty with the understanding of the term of imprisonment to beimposed, but is not informed until sentencing of the postrelease supervision component of hissentence, the plea must be vacated as not knowing and voluntary (People v Louree, 8 NY3d 541,545 [2007]). Belated knowledge of postrelease supervision learned of at the time of sentencingdoes not constitute grounds to require a motion to vacate the plea in order to preserve the issuefor appeal (id. at 545-546).
We reject the dissent's assertion that defendant did not have to be informed of the postreleasesupervision component of the potential sentence, on the reasoning that postrelease supervisionwas not in this instance a "direct consequence" of the plea as contemplated by People v Catu (4 NY3d 242[2005]), since it would only become necessary in the event that defendant failed to satisfy theconditions of his "deferred sentence." At the time of the plea, in order to ensure that defendantwas knowingly and voluntarily waiving his right to trial, the court appropriately informeddefendant that the proposed terms of the plea included a potential determinate term of anywherefrom three years to 15 years if he failed to satisfy the conditions of his interim probation. By thesame token, the court should have simultaneously made defendant aware of the postreleasesupervision component of that potential sentence. In our view, the potential term ofimprisonment, including postrelease supervision, may have been contingent on defendant'sbehavior, but it nevertheless does not fall into the category of "collateral consequences" aboutwhich the defendant need not be informed in order to ensure a valid waiver.Concur—Saxe, J.P., DeGrasse and Freedman, JJ.
Buckley and McGuire, JJ., dissent in a memorandum by McGuire, J., as follows: Themajority implicitly concludes that defendant's claim under People v Catu (4 NY3d 242 [2005]) is preserved for review andhas not been waived. As defendant is entitled to no relief in any event, I need not decide whetherI agree with that conclusion.
Although the plea minutes make clear that defendant was not advised on the record of apostrelease supervision component to the sentence in the event he did not successfully completethe interim probation sentence, the critical question is whether defendant was so advised prior tothe plea colloquy during proceedings that were not transcribed. The record provides asubstantial, albeit not a conclusive, basis for concluding that defendant was so advised. Atsentencing, the court stated that at the time of his plea defendant was advised that if he was notsuccessful on the interim probation sentence, he would "have to go to prison for 3½ yearsand, of course, 5 years of Post-Release Supervision." Defendant's attorney agreed with the court,expressly stating, "Yes; I remember that, Judge." If Justice White and defense counsel werecorrect, vacating defendant's guilty plea confers a windfall on defendant and needlessly deprives[*3]the People of a fairly obtained conviction for a serious crime.The majority writes that "in the absence of any mention in the plea minutes of postreleasesupervision, we are unable to conclude that defendant was timely informed of it." I respectfullysubmit that the majority also should be unable to conclude that the court and defense counselwere wrong, i.e., that defendant was not timely informed of postrelease supervision.
Accordingly, I would hold that defendant has failed to meet his burden of presenting thisCourt with a factual record sufficient to permit review of his claim that he was not timelyinformed about postrelease supervision (see People v Kinchen, 60 NY2d 772, 773-774[1983]). For the majority to simply accept defendant's appellate claim that his counsel and thecourt were wrong is particularly inappropriate given the absence of any sworn assertion fromdefendant that he was not informed about postrelease supervision at the time of the plea.
Defendant's claim under People v Catu should be rejected for an independent reason:on the particular facts of this case, the court was not required to advise defendant aboutpostrelease supervision. Although a trial court must advise a defendant of the directconsequences of a guilty plea, the court "has no obligation to explain to defendants who pleadguilty the possibility that collateral consequences may attach to their criminal convictions" (4NY3d at 244). Collateral consequences "are peculiar to the individual and generally result fromthe actions taken by agencies the court does not control"; a direct consequence "is one which hasa definite, immediate and largely automatic effect on defendant's punishment" (id.[internal quotation marks omitted]). Under the plea agreement, neither a term of imprisonmentnor a period of postrelease supervision was a definite, immediate or automatic consequence ofthe plea. Rather, defendant was to be placed on interim probation supervision for up to one yearand, if he successfully abided by the conditions of that supervision, including completing aFortune Society program and not getting rearrested, he would be permitted to receive youthfuloffender treatment and a probationary sentence. The imposition of a sentence that included aperiod of postrelease supervision was no more than an indefinite possibility, one that wascontingent on defendant's own actions. In my view, accordingly, the direct consequences ofdefendant's plea did not include a period of postrelease supervision.
In this regard, Torrey v Estelle (842 F2d 234, 236 [9th Cir 1998]) is instructive.After serving two years in the custody of the California Youth Authority following his plea ofguilty to first-degree murder, Torrey was returned to court for imposition of a state prisonsentence on the ground that he was not amenable to Youth Authority treatment, and wassentenced to 25 years to life. Rejecting Torrey's claim that his plea was involuntary because hewas not advised of the possibility he thus could be returned to court and committed to stateprison, the Ninth Circuit held that "the possibility that [Torrey] could be returned to the court forcommitment to state prison was not an automatic consequence of his plea" (id. at 236).The court reasoned that "exclusion from the Youth Authority is contingent on many factors,including the future conduct of the defendant himself, and cannot be held to be a directconsequence of his plea" (id. [footnote omitted]). Finally, what the court concludedabout Torrey's "failure to succeed under the original terms of his sentence" is equally applicableto defendant's failure to succeed on interim [*4]probationsupervision: it "was simply an indefinite possibility on which the trial judge had no duty tospeculate" (id.).