| People v Monroe |
| 2011 NY Slip Op 07697 [89 AD3d 429] |
| November 1, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v William Monroe, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), forrespondent.
Order, Supreme Court, New York County (Bruce Allen, J.), entered on or about October 15,2010, which denied defendant's CPL 440.10 motion to vacate a judgment, same court andJustice, rendered September 27, 2007, convicting defendant, on his plea of guilty, of conspiracyin the second degree, and denied defendant's CPL 440.46 motion for resentencing under the sameconviction, unanimously affirmed.
Defendant is not entitled to withdraw his guilty plea on the ground that his promisedsentence ran concurrently with other sentences that were reduced as the result of defendant'sresentencing motion. He is also not entitled to a reduction of his sentence.
In the conspiracy case at issue on this appeal, defendant was sentenced, as promised, nuncpro tunc, to a sentence of 6 to 12 years to run concurrently with an aggregate term of 4½ to9 years imposed in 2006 for two convictions of third-degree criminal possession of a controlledsubstance. Thus, the conspiracy conviction effectively added 1½ to 3 years to the timedefendant was already serving for the drug convictions.
In 2010, following defendant's successful CPL 440.46 motion, the Justice who had sentenceddefendant on the drug convictions reduced those sentences to an aggregate term of three years,with two years' postrelease supervision. Defendant argues that since the gap between theconspiracy and drug sentences has now widened, "the removal or reduction of the preexistingsentence nullified a benefit that was expressly promised and was a material inducement to theguilty plea" (People v Rowland, 8NY3d 342, 345 [2007]; see alsoPeople v Pichardo, 1 NY3d 126 [2003]).
What distinguishes this case from Rowland and Pichardo is that defendant'sdrug convictions and sentences were never reversed on appeal or otherwise invalidated. Instead,defendant invoked the ameliorative provisions of the Drug Law Reform Act to obtain a morelenient sentence. A concurrent sentence that subsequently proves to be invalid cannot be equatedwith a valid concurrent sentence that is subsequently reduced as the result of a defendant'srequest for leniency. The former, but not the latter, may be viewed as an unfair inducement toplead guilty that affects the voluntariness of the plea.
The court also properly denied defendant's CPL 440.46 motion for resentencing on the [*2]conspiracy conviction. The statute applies only to convictions underarticle 220 of the Penal Law (CPL 440.46 [1]; see also People v Cagle, 81 AD3d 425 [2011]).
We have considered and rejected defendant's remaining arguments.Concur—Friedman, J.P., Catterson, Moskowitz, Freedman and Abdus-Salaam, JJ.