| People v Becker |
| 2011 NY Slip Op 00048 [80 AD3d 795] |
| January 6, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert R.Becker, Jr., Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Malone Jr., J. Appeals (1) from a judgment of the County Court of Delaware County (Cerio,Jr., J.), rendered May 14, 2009, convicting defendant upon his plea of guilty of the crime ofsexual abuse in the first degree (two counts), and (2) from a judgment of said court, renderedMay 21, 2009, convicting defendant upon his plea of guilty of the crimes of rape in the thirddegree, endangering the welfare of a child and attempted sexual abuse in the second degree.
Defendant was charged in two indictments with a total of 13 counts, all arising fromincidents of sexual contact that defendant had with four teenage girls and an incident of sexualintercourse with a fifth teenage girl. As part of a plea agreement, defendant pleaded guilty to onecount of rape in the third degree, endangering the welfare of a child and attempted sexual abusein the second degree in full satisfaction of the nine counts charged in the first indictment. Insatisfaction of the second indictment, he pleaded guilty to two counts of sexual abuse in the firstdegree. Pursuant to the plea agreement, the sentence promised to defendant was a one-year jailterm, with 10 years of probation, conditioned upon, as is relevant here, his cooperation with theProbation Department in preparing a presentence report. County Court advised defendant that hisfailure to abide by the conditions imposed could result in the court imposing an enhancedsentence. After the presentence report was completed, the People moved to void the plea [*2]agreement on the basis that defendant had failed to cooperate withthe Probation Department. Following a hearing, the court granted the People's motion. Defendantthen unsuccessfully moved to withdraw his pleas and County Court subsequently sentenced him,upon the first indictment, to 10 years of probation for the rape count and one-year conditionaldischarges on the other two counts, and, on the second indictment, sentenced him to twoconcurrent terms of four years in prison, with 10 years of probation. Defendant appeals.
It is well established that the violation of an explicit and objective plea condition that wasaccepted by the defendant can result in the imposition of an enhanced sentence (see People vHicks, 98 NY2d 185, 189 [2002]; People v Coffey, 77 AD3d 1202, 1203 [2010]; People v Blackwell, 62 AD3d 896,897 [2009], lv denied 13 NY3d 742 [2009]). Here, the condition that defendant wasfound to have violated required him to "comply with the Probation Department, cooperate withthem fully during the course of the pre-sentence investigation."[FN1]According to the People, defendant violated this condition by providing answers to the probationofficer's questioning related to the events underlying his convictions—particularly withrespect to the first degree sexual abuse charges—that were not consistent with therepresentations that defendant made at the time he entered his guilty pleas. However, CountyCourt never explicitly required defendant to provide answers to the Probation Department thatwere in conformity with his responses during the plea allocutions (compare People vHicks, 98 NY2d 185 [2002], supra; People v Coffey, 77 AD3d 1202 [2010], supra; People v Blackwell, 62 AD3d 896[2009], supra; People vFaulkner, 54 AD3d 1134, 1135 [2008], lv denied 11 NY3d 854 [2008]; People v Terrell, 41 AD3d 1044,1044-1045 [2007]), and only the failure to comply with explicit conditions can form the basis ofa violation.[FN2]
Furthermore, the probation officer informed defendant at the outset of the interview that he"need[ed] to be honest and truthful as to what [his] side of the story [was]." Requesting defendantto tell "[his] side of the story" is not necessarily the same as requesting that he provide a"truthful" and objective statement of fact, however. Under these circumstances, in light of thefact that defendant was never explicitly informed that his responses to the Probation Departmenthad to conform with his responses during his plea allocution in order to be considered "truthful"and satisfy the conditions of the plea agreement, the fact that he provided the probation officerwith a characterization of the incidents that was different than what he said to County Courtwhen he pleaded guilty does not necessarily prove that his responses to the probation officer wereinherently untruthful or that he did not "comply" and "cooperate" with the Probation Departmentas required by the court.[*3]
Accordingly, we agree with defendant that the sentencesshould be vacated and the matter remitted to County Court to either impose the originalagreed-upon sentences or give defendant an opportunity to withdraw his pleas before imposingthe enhanced sentences (see People vMcDermott, 68 AD3d 1453, 1454 [2009]).
Cardona, P.J., Mercure, Stein and Garry, JJ., concur. Ordered that the judgments aremodified, on the law, by vacating the sentences imposed; matter remitted to the County Court ofDelaware County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.
Footnote 1: This was the condition as statedby County Court at the time of his guilty plea in connection with the second indictment. As statedat the time of his guilty plea with respect to the first indictment, defendant was required to"cooperate with the Probation Department in preparing the pre-sentence investigation" report.
Footnote 2: According to the probationofficer, defendant did cooperate in the preparation of the presentence investigation report by,among other things, showing up for the interview on time and with all of the requireddocumentation and answering all of her questions.