| People v Griffin |
| 2010 NY Slip Op 03540 [72 AD3d 1496] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Davon M.Griffin, Appellant. |
—[*1]
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedAugust 11, 2003. The judgment convicted defendant, upon his plea of guilty, of manslaughter inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toOnondaga County Court for further proceedings in accordance with the following memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter inthe first degree (Penal Law § 125.20 [1]). On a prior appeal defendant challenged, interalia, the voluntariness of both his waiver of the right to appeal and his plea, and we affirmed thejudgment of conviction (People vGriffin, 24 AD3d 1316 [2005], lv denied 6 NY3d 813 [2006]). We thereafterdenied defendant's motion to vacate the judgment of conviction pursuant to CPL 440.10, but wegranted his subsequent motion for a writ of error coram nobis (People v Griffin, 59 AD3d 1106[2009]). We agreed with defendant that he may have been denied effective assistance ofappellate counsel by reason of defense counsel's failure to challenge County Court's failure tocomply with the statutory mandates of CPL 400.21 (see generally People v Borrell, 12 NY3d 365, 369-370 [2009]),and we therefore vacated our prior order affirming the judgment of conviction and determinedthat we would "consider the appeal de novo" (Griffin, 59 AD3d at 1106).
On this de novo appeal, we once again reject the challenge by defendant to the voluntarinessof his waiver of the right to appeal (see Griffin, 24 AD3d 1316 [2005]). Defendantfurther contends that his guilty plea was not voluntary, knowing or intelligent based on thecourt's alleged failure to address either his complaints concerning assigned counsel or hispostplea statement that he "[didn't] even want this plea now." Although that contention ispreserved for our review because it was raised in defendant's CPL 440.10 motion (see generally People v Bevins, 27AD3d 572, 572-573 [2006]; Peoplev Ballinger, 24 AD3d 792 [2005]; People v Kemp, 10 AD3d 811 [2004], lv denied 4 NY3d765 [2005]; People v Martin, 7AD3d 640, 641 [2004], lv denied 3 NY3d 677 [2004]), we nevertheless concludeupon our review of the record that it lacks merit.
We agree with defendant, however, that the court erred in sentencing defendant as a first[*2]felony offender to a term of incarceration of 15 years plus aperiod of postrelease supervision of 2½ years, which defendant contends was hisunderstanding of the terms of the plea agreement. When it became apparent at sentencing thatdefendant had a prior felony conviction, the People were required to file a second felonyoffender statement in accordance with CPL 400.21 and, if appropriate, the court was thenrequired to sentence defendant as a second felony offender (see People v Scarbrough, 66NY2d 673 [1985], revg on dissenting mem of Boomer, J., 105 AD2d 1107,1107-1109 [1984]; People v Motley [appeal No. 3], 56 AD3d 1158, 1159 [2008];People v Ortiz, 227 AD2d 902, 902-903 [1996]). "[I]t is illegal to sentence a knownpredicate felon as a first offender" (People v Holley, 168 AD2d 992, 993 [1990]), and"[t]he statutory requirement that a defendant with a predicate felony conviction be sentenced as asecond felony offender was not intended 'to be circumvented by . . . theacquiescence of a sentencing Judge whenever he [or she] is inclined to extend leniency inviolation of the legislative mandate' " (Motley, 56 AD3d at 1159, quotingScarbrough, 105 AD2d at 1109).
Here, as defendant contends, he agreed to plead guilty based on his understanding that hewould receive the agreed-upon sentence, i.e., a term of incarceration of 15 years and a period ofpostrelease supervision of 2½ years. If defendant is in fact a second felony offender, thatperiod of postrelease supervision is illegal, requiring vacatur of the sentence and, indeed, vacaturof the plea, if defendant should choose to withdraw his plea. We therefore modify the judgmentby vacating the sentence, and we remit the matter to County Court for resentencing incompliance with CPL 400.21. If the court upon remittal determines that defendant is a secondfelony offender, the court must afford defendant the opportunity to withdraw his plea or to beresentenced as a second felony offender (see id.; Ortiz, 227 AD2d at 903).Present—Scudder, P.J., Peradotto, Carni, Green and Gorski, JJ.