| People v Cornell |
| 2010 NY Slip Op 06056 [75 AD3d 1157] |
| July 9, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BarakCornell, Appellant. |
—[*1] David W. Foley, District Attorney, Mayville (Lynn S. Schaffer of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.), renderedDecember 15, 2008. The judgment convicted defendant, upon his plea of guilty, of arson in thesecond degree.
It is hereby ordered that the judgment so appealed from is reversed on the law, the plea isvacated, and the matter is remitted to Chautauqua County Court for further proceedings on theindictment.
Memorandum: On appeal from a judgment convicting him upon his guilty plea of arson inthe second degree (Penal Law § 150.15), defendant contends that the judgment ofconviction must be reversed because County Court failed to advise him at the time of his pleathat his sentence would include a period of postrelease supervision (PRS). We agree. It is wellestablished that a "trial court has the constitutional duty to ensure that a defendant, beforepleading guilty, has a full understanding of what the plea connotes and its consequences"(People v Ford, 86 NY2d 397, 402-403 [1995]; see People v Louree, 8 NY3d 541, 544 [2007]). "Although thecourt is not required to engage in any particular litany when allocuting the defendant, 'dueprocess requires that the record must be clear that the plea represents a voluntary and intelligentchoice among the alternative courses of action open to the defendant' " (People v Catu, 4 NY3d 242, 245[2005], quoting Ford, 86 NY2d at 403).
Here, defendant was indicted on three felony offenses, including arson in the second degree.Defendant entered a plea of not guilty and the matter proceeded to trial where, at the outset ofjury selection, the prosecutor placed the People's plea offer on the record. The offer requireddefendant to plead guilty to arson in the second degree in satisfaction of all charges, in return fora sentence promise from the court of 14 years' imprisonment plus a period of five years of PRS.Defendant rejected that offer, stating, inter alia, that he wanted a sentence promise of sevenyears. Following a conference with defense counsel and the prosecutor in chambers, the courtinformed defendant that it would "cap the sentence at 14 years" and consider a lesser term basedupon the submission of mitigating evidence at sentencing. The court did not mention a period ofPRS. Defendant rejected that modified offer, and the court proceeded with jury selection. Laterthat day, after seven jurors had been seated, the court spoke to defendant and defense counsel offthe record. Following that discussion, the court reiterated to defendant on the [*2]record that it would sentence him to no more than 14 years'imprisonment if he were to plead guilty to the top count of the indictment, i.e., arson in thesecond degree. No mention of any period of PRS was made by the court, the prosecutor ordefense counsel. Although he had rejected the same modified offer from the court earlier thatday, defendant stated that he understood the offer and wished to accept it, whereupon the courtengaged him in a plea colloquy and accepted his guilty plea. At no time during the colloquy didthe court mention a period of PRS. The court nevertheless sentenced defendant to a period ofPRS of five years, along with a determinate term of imprisonment of 14 years.
It is undisputed that defendant was not advised at the time of the plea that his sentence wouldinclude a period of PRS. The People contend, however, that the plea need not be vacated becausethe prosecutor had stated earlier that day that the People's plea offer included a period of PRS. Inour view, the record does not make clear that defendant was aware that the court's sentencepromise, which as noted was slightly modified from that articulated by the prosecutor, included aperiod of PRS. The prosecutor did not state that a period of PRS was mandatory, and the court,when it modified the sentence promise to a cap of 14 years' imprisonment, did not state that allother conditions of the plea agreement as outlined by the prosecutor earlier that day wouldremain in effect. The court simply stated that its sentence promise was a cap of 14 years'imprisonment. Under the circumstances, it cannot be said that defendant necessarily wasinformed that his sentence would be a cap of 14 years' imprisonment plus a period offive years of PRS. Indeed, defendant may reasonably have believed that the court's repeatedfailure to mention a period of PRS indicated that it was no longer a part of the sentence promise.It is of course possible that defendant knew that his sentence would include a period of PRS, butto reach that conclusion on this record would entail engaging in impermissible speculation. Asthe Court of Appeals has explained, the " 'record must be clear' " with respect to the knowledgeof defendant of the terms of his sentence (Catu, 4 NY3d at 245), and the record in thiscase does not meet that standard.
We cannot agree with the dissent that the proceedings on the day in question may becharacterized as "an ongoing plea allocution." There was a pronounced break in the pleadiscussions after defendant rejected the People's plea offer that morning. Jury selection thereaftercommenced, the court adjourned the proceeding for lunch, and seven jurors were seated. Atsome time later that day, the discussions concerning a plea were renewed and defendanteventually decided to plead guilty. At that time, the court had a constitutional duty to ensure thatdefendant was aware that his sentence would include a period of PRS (see Louree, 8NY3d at 544), and the fact that the prosecutor mentioned a period of PRS earlier that day doesnot excuse the court from fulfilling its constitutional duty (see generally People v Garcia, 61 AD3d 475 [2009], lv denied12 NY3d 925 [2009]; see alsoPeople v Key, 64 AD3d 793 [2009]). The guilty plea must therefore be vacated even inthe absence of a postallocution motion (see People v Boyd, 12 NY3d 390, 393 [2009]; People v Dillon, 67 AD3d 1382,1383 [2009]).
All concur except Smith, J.P., and Sconiers, J., who dissent and vote to affirm in thefollowing memorandum.
Smith, J.P., and Sconiers, J. (dissenting). We respectfully dissent and would affirm thejudgment. It is well established that a defendant " 'must be aware of the postrelease supervision[PRS] component of [his or her] sentence in order to knowingly, voluntarily and intelligentlychoose among alternative courses of action' " (People v Louree, 8 NY3d 541, 545 [2007], quoting People v Catu, 4 NY3d 242, 245[2005]). We cannot agree with the majority, however, that the plea entered by defendant was notvoluntary, knowing and intelligent because County Court did not personally inform defendant atthe time of the plea that his sentence would include a period of PRS.
The record establishes that, at the start of the proceedings on the day that this matter wasscheduled for trial, the prosecutor stated on the record that the People would permit defendant to[*3]plead guilty to the charge of arson in the second degree infull satisfaction of the remaining counts of the indictment, and that County "Court has indicatedthat upon such a plea [it] would commit to a term of 14 years in state prison plus five years [of]postrelease supervision." The court then stated, "that's correct," and asked whether that was thedefense's understanding of the terms of the plea agreement. After defense counsel answered inthe affirmative, defendant attempted to bargain with the court regarding the length of the term ofincarceration rather than accepting the plea at that time. After repeatedly indicating that the termof incarceration would remain as set forth in the plea agreement recited by the prosecutor, thecourt eventually stated that jury selection would proceed.
Later that same day, however, the court stated that it had personally spoken with defendant,in the presence of and with the permission of the prosecutor and defense counsel. The courtfurther stated that it would cap the sentence at 14 years if defendant pleaded guilty, and wouldpermit defense counsel to attempt to obtain a lesser sentence by presenting the court with recordsregarding defendant's psychological issues. The court did not repeat the other terms of the pleaagreement. Defendant pleaded guilty and, at a later date, was sentenced to a term of incarcerationof 14 years plus a five-year period of PRS.
Initially, we conclude that defendant failed to preserve his current contention for our reviewinasmuch as he failed to move to withdraw the plea or to vacate the judgment of convictionbased on that contention (see generallyPeople v Schwandner, 67 AD3d 1481 [2009], lv denied 14 NY3d 805 [2010]).While we of course agree with the majority that, where the record fails to establish that the court,directly or through the prosecutor, "advise[d] a defendant of postrelease supervision during theplea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligenton direct appeal, notwithstanding the absence of a postallocution motion" (Louree, 8NY3d at 545-546), here the record establishes that defendant was in fact advised of the sentenceto be imposed, including its PRS component, during what may be characterized under thecircumstances of this case as an ongoing plea allocution. "Because defendant could have soughtrelief from the sentencing court in advance of the sentence's imposition, Louree'srationale for dispensing with the preservation requirement is not presently applicable"(People v Murray, 15 NY3d 725, 727 [2010]).
Even assuming, arguendo, that preservation is not required, we would nevertheless reject thecontention of defendant that his plea was not knowingly, voluntarily and intelligently enteredbecause the court failed to apprise him that a period of PRS would be imposed as a component ofthe sentence. The majority is correct that the Court of Appeals has stated that, in order to ensurethat a defendant is aware that a period of PRS will be imposed as part of a sentence, "the trialjudge must advise a defendant of the direct consequences of a plea and the resulting waiver ofrights" (Louree, 8 NY3d at 545; see Catu, 4 NY3d at 244-245). In that samecase, however, the Court of Appeals also stated that " '[t]he court is not required to engage in anyparticular litany when allocuting the defendant, but due process requires that the record must beclear that the plea represents a voluntary and intelligent choice among alternative courses ofaction open to the defendant' " (Louree, 8 NY3d at 544-545). We have repeatedlyconcluded that a court need not personally state the conditions of a plea but, rather, theprosecutor may state the conditions provided that the record reflects that the defendantunderstood his or her choices and made a voluntary and intelligent choice among the alternatives(see e.g. People v Williams, 15AD3d 863 [2005], lv denied 5 NY3d 771 [2005], lv denied uponreconsideration 5 NY3d 811 [2005]; People v Gress, 4 AD3d 830 [2004], lv denied 2 NY3d 740[2004]). Here, the prosecutor unequivocally stated at the start of the proceedings on the day ofthe plea that a five-year period of PRS was a condition of the plea, the court and defense counselindicated their agreement with that statement, and defendant did not request any alteration withrespect to that term of the sentence promise. Thus, the record reflects defendant's understandingthat PRS was a condition of the plea. Present—Smith, J.P., Lindley, Sconiers, Pine andGorski, JJ.