| People v Bartlett |
| 2012 NY Slip Op 08830 [101 AD3d 1373] |
| December 20, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Frank Bartlett,Jr., Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (Pamela A. Ladd of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Montgomery County (Catena,J.), rendered May 31, 2011, which revoked defendant's probation and imposed a sentence ofimprisonment.
In March 2010, defendant pleaded guilty to criminal possession of a controlled substance inthe fifth degree and was sentenced to six months in jail and five years of probation. A violationof probation petition was filed against defendant in January 2011, alleging that he had violatedthe terms of his probation by, among other things, committing the crimes of criminal contempt inthe first degree and criminal mischief in the fourth degree in November 2010. Defendantappeared before County Court and admitted to each of the alleged probation violations with theunderstanding that his probation would be revoked and he would be sentenced to a term ofimprisonment of two years followed by one year of postrelease supervision. At the time ofsentencing, defendant moved to withdraw his plea, contending that he misunderstood the dateupon which the criminal contempt and criminal mischief were alleged to have occurred and thatthose crimes had not actually been charged in any court. After an inquiry into the basis for theapplication, County Court denied defendant's motion to withdraw the plea and proceeded tosentence him as agreed. Defendant now appeals.
Defendant argues that his plea was not knowing, voluntary and intelligent because he [*2]was under the mistaken impression that the crimes he admittedcommitting, and which served as part of the basis for his probation violation, had been charged inSchenectady County. At the time of sentencing, defendant explained that at the time of hisadmission he understood, based upon what he was told by his lawyer, that he was alleged to haveviolated an order of protection in December 2010, but his mother learned from the court that thecharges were dropped because the order of protection had expired earlier in December 2010.Although the charges of criminal contempt and criminal mischief had apparently been filed andan arrest warrant had been issued, the Schenectady City Court informed the People that defendantwas never arrested on, and the court's database had no record of, those charges.
"Whether to allow withdrawal of a guilty plea is left to the sound discretion of County Court,and will generally not be permitted absent some evidence of innocence, fraud or mistake in itsinducement" (People v Johnson, 77AD3d 986, 986 [2010], lv denied 16 NY3d 743 [2011] [internal quotation marks andcitations omitted]; see People vCarmona, 66 AD3d 1240, 1241 [2009], lv denied 14 NY3d 799 [2010]; People v Singletary, 51 AD3d1334, 1334 [2008], lv denied 11 NY3d 741 [2008]). Here, defendant raisedquestions as to his innocence of the major probation violations, namely violating the law and anorder of protection, and that he was induced to admit to the violation of probation based upon amistake. County Court stated that this situation had become confusing and mentioned ordering acopy of the transcript of the plea colloquy, but for some reason that did not occur. Although, atsentencing, County Court recited its recollection of its questions and defendant's answers fromthe plea colloquy, that recollection was not accurate. At the colloquy, the court did not fully readeach of the alleged violations and recite the date upon which each was alleged to have occurred.Instead, the court asked vague questions without specific information as to the allegations in theviolation petition, such as, "Paragraph 5 alleges that you violated probation by committing theoffense of criminal contempt in the first degree. Admit or deny?" Defendant admitted this andother violations during the plea colloquy, but his explanation at sentencing was that, despiteparagraph 5 saying that he committed criminal contempt in November 2010, he had engaged inthe alleged conduct in December 2010, after the order of protection had expired. Based on theway that the court framed the questions in the colloquy, it is possible that defendantmisunderstood, and that the actions he admitted to did not constitute a violation of the law or ofhis probation.
Where the record raises legitimate questions as to whether the plea was knowingly,intelligently and voluntarily entered into, an evidentiary hearing is required (see People v Brown, 14 NY3d113, 116 [2010]; People v Singletary, 51 AD3d at 1334). While County Court finallynoted that defendant would be resentenced due to his technical violations even if he had neverhad contact with police in Schenectady, it seems unlikely that he would be sentenced to two yearsin prison for violations such as failing to report to his probation officer and failing to pay his fineand surcharge by a certain date.[FN*] Due to the confusion on the record, including the court's own inaccurate recollection of thecolloquy, County Court abused its discretion by denying defendant's motion to withdraw his pleawithout holding a hearing (see People v Brown, 14 [*3]NY3d at 117-118).
Rose, J.P., Lahtinen, Spain and Kavanagh, JJ., concur. Ordered that the judgment is reversed,on the law and the facts, and matter remitted to the County Court of Montgomery County forfurther proceedings not inconsistent with this Court's decision.
Footnote *: Although defendant hadadmitted the technical violations at the plea colloquy, he again answered general questions suchas whether he failed to remain in the jurisdiction. At sentencing, defendant stated that he receivedpermission to travel to New York City, creating confusion as to his guilt of these violations aswell.