| People v Turner |
| 2013 NY Slip Op 04475 [107 AD3d 1543] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v GennaA. Turner, Appellant. |
—[*1]
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.),rendered May 12, 2011. The judgment convicted defendant, upon her plea of guilty, ofattempted murder in the second degree, burglary in the first degree and criminal contemptin the first degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: On appeal from a judgment convicting her upon a plea of guilty of,inter alia, attempted murder in the second degree (Penal Law §§ 110.00,125.25 [1]), defendant contends that County Court erred in refusing to suppress thestatements that she made during an interview at the police station and that she did notknowingly, voluntarily and intelligently enter her plea because the court did not adviseher that she would be subject to a five-year period of postrelease supervision (PRS) (see generally People v Catu, 4NY3d 242, 245 [2005]).
We conclude that the court (Castro, A.J.) properly refused to suppress the statementsdefendant made at the police station. Although defendant made an inculpatory statementafter she was placed in a patrol vehicle and additional inculpatory statements after shewas transported to the police station, the court granted suppression of the statement madein the patrol vehicle on the ground that her detention constituted an arrest for which thepolice officer lacked probable cause. The court refused, however, to suppress thesubsequent statements at the police station based on its determination that they were"attenuated from the unlawful arrest." We agree with the People that the record supportsthe court's determination (seegenerally People v Bradford, 15 NY3d 329, 333-334 [2010]). Although therewas a period of only one hour between the time of the illegal arrest and the time ofdefendant's statements at the police station (cf. People v Russell, 269 AD2d 771,772 [2000]), we note that defendant was given Miranda warnings before thestationhouse interview (see Bradford, 15 NY3d at 334; Russell, 269AD2d at 772; People v Salami, 197 AD2d 715, 715-716 [1993], lvdenied 83 NY2d 876 [1994]). Moreover, the victim's identification of defendant asthe perpetrator constitutes a significant intervening event (see Bradford, 15NY3d at 334; Russell, 269 AD2d at 772) inasmuch as that identificationprovided the police with probable cause for defendant's arrest (see People v Divine, 21 AD3d767, 767 [2005], affd 6 NY3d 790 [2006]; Salami, 197 AD2d at715). Lastly, there was no flagrant misconduct or bad faith on the part of [*2]the police officer who took defendant into custody (seeBradford, 15 NY3d at 334; Divine, 21 AD3d at 767).
We reject defendant's contention that the court erred in effectively giving the Peoplea "second bite at the apple" when it reopened the suppression hearing (see generallyPeople v Havelka, 45 NY2d 636, 643 [1978]). The prosecutor established that it wasunclear whether defendant was challenging her statements as involuntarily made(see CPL 60.45) or as the fruit of an illegal arrest. In any event, we conclude thatthe court properly exercised its discretion in reopening the hearing (see e.g. People v Binion, 100AD3d 1514, 1516 [2012];People v Ramirez, 44 AD3d 442, 443 [2007], lv denied 9 NY3d 1008[2007]; People v Cestalano,40 AD3d 238, 238 [2007], lv denied 9 NY3d 921 [2007]).
Following the court's suppression ruling, defendant agreed to enter a plea of guilty tothe indictment with the understanding that the court would impose a sentence ofincarceration of 15 years. It is undisputed that there was no mention of PRS during thecourse of the plea allocution. "Because a defendant pleading guilty to a determinatesentence must be aware of the [PRS] component of that sentence in order to knowingly,voluntarily and intelligently choose among alternative courses of action, the failure of acourt to advise of [PRS] requires reversal of the conviction" (Catu, 4 NY3d at245; see People v Hill, 9NY3d 189, 191 [2007], cert denied 553 US 1048 [2008]). It is axiomaticthat "a plea cannot be knowing, voluntary and intelligent if a defendant is ignorant of adirect consequence because of a deficiently conducted allocution" (People v Louree, 8 NY3d541, 545 [2007]).
The Court of Appeals has held that, generally, preservation of a Catu error isnot required. "If the trial judge does not mention [PRS] at the allocution,. . . a defendant can hardly be expected to move to withdraw his [or her]plea on a ground of which he [or she] has no knowledge. [Moreover,] if the trial judgeinforms the defendant of [PRS] during the course of sentencing, . . . adefendant may no longer move to withdraw the plea since a motion may only be madeunder CPL 220.60 (3) '[a]t any time before the imposition of sentence' (emphasisadded)" (Louree, 8 NY3d at 546). The Court of Appeals has also held in at leastone instance, however, that a defendant is required to preserve a Catu error (see People v Murray, 15 NY3d725 [2010]).
In Murray, the defendant was informed prior to his plea that he faced atwo-year period of PRS but, when he appeared for sentencing, the court informed him "atthe outset of the sentencing proceeding" of the exact sentence that would be imposed,which included a three-year period of PRS (id. at 726-727). The defendant didnot object to the imposition of the three-year period of PRS and, on appeal, the Courtwrote that "[b]ecause [the] defendant could have sought relief from the sentencing courtin advance of the sentence's imposition, Louree's rationale for dispensing withthe preservation requirement is not presently applicable" (id. at 727).
Since Louree, courts have attempted to identify at what point a defendant"could have sought relief . . . in advance of the sentence's imposition"(id.). For example, in both People v Young (85 AD3d 1489, 1490 [2011]) and People v Lee (80 AD3d1072, 1073 [2011], lv denied 16 NY3d 832 [2011]), the Third Departmentfollowed the holding of Murray and required preservation where the defendantswere informed, at the outset of the sentencing proceeding, that a greater period of PRSwould be imposed. In contrast, the Court of Appeals has not required preservation wherea defendant was informed of the period of PRS "only moments before" the court imposedthe sentence (People vMcAlpin, 17 NY3d 936, 938 [2011]).
In People v Burroughs(71 AD3d 1447, 1448 [2010], lv denied 15 NY3d 802 [2010]), the courtfailed to inform the defendant of the PRS component of the sentence at the time of theplea. The defendant, however, received that information "approximately one monthbefore sentencing" and was granted two adjournments to prepare a postallocution motion(id.). At no time did the [*3]defendant move towithdraw his plea on the ground that the court would impose PRS (see id.).Inasmuch as the defendant had notice of the error and an opportunity to be heard on thatissue, this Court rejected the defendant's contention that his plea of guilty should bevacated (see id.). In People v Madison (71 AD3d 1422, 1422 [2010], lvdenied 15 NY3d 753 [2010]), the court failed to advise the defendant at the time ofthe plea that a period of PRS would be imposed. Several hours later, after the court hadrecognized the omission, the defendant was brought back to court and informed of thePRS component of the sentence (see id.). Upon questioning by the court, thedefendant "indicated that such information did not affect his willingness to adhere to theplea agreement" (id. at 1422-1423). On appeal we rejected the defendant'srequest to vacate the plea on the ground that he "had the requisite notice that a period of[PRS] would be imposed and an opportunity to withdraw his plea" (id. at 1423).In Burroughs and Madison, each defendant had sufficient opportunity topreserve any issue with respect to PRS by bringing a postallocution motion to withdrawthe plea.
Where the record is not clear that a defendant was informed of the PRS componentof the sentence before imposition of the sentence or the record does not establish that thedefendant had an opportunity to withdraw the plea, we have followed the decision inLouree and vacated the pleas even in the absence of preservation (see People v Cornell, 75 AD3d1157, 1159 [2010], affd 16 NY3d 801 [2011]; People v Colon, 101 AD3d1635, 1638 [2012]). As we wrote in Cornell, "the court ha[s] a constitutionalduty to ensure that [a] defendant [is] aware that his [or her] sentence [will] include aperiod of PRS" (Cornell, 75 AD3d at 1159).
We conclude that this case is distinguishable from McAlpin, Cornelland Colon. In this case the prosecutor informed the court, " 'before theimposition of sentence' " (Louree, 8 NY3d at 546; see generally CPL220.60 [3]), that he could not recall whether PRS had been discussed at the time of theplea. The prosecutor noted that they "should probably make a record of that. . . so it is clear." At that point, the court informed defendant that it"intend[ed] to make a five year period of [PRS]." Defendant was then asked if she had achance to talk about that with her attorney, and defendant answered, "[y]es." Defendantwas also asked if she understood that the PRS was a "part of [her] plea" and that shewould be on parole supervision for five years at the end of her prison sentence.Defendant answered, "[c]orrect." When asked if she "still wish[ed] to go through withsentencing today," defendant again answered, "[y]es."
In our view, the record is clear that "defendant could have sought relief from thesentencing court in advance of the sentence's imposition," and thus"Louree's rationale for dispensing with the preservation requirement isnot presently applicable" (Murray, 15 NY3d at 727; see Madison, 71AD3d at 1422-1423; Burroughs, 71 AD3d at 1448; see also People v Brady, 59AD3d 748, 748 [2009]). In any event, we conclude that defendant waived her rightto assert the Catu error inasmuch as "there is ample evidence in the recordsupporting the . . . conclusion that defendant agreed to the bargain and didso voluntarily with a full appreciation of the consequences" (People v Seaberg,74 NY2d 1, 11 [1989]; see generally People v Cox, 71 AD2d 798, 798 [1979]).
All concur except Sconiers and Martoche, JJ., who dissent and vote to reverse thejudgment in accordance with the following memorandum.
Sconiers and Martoche, JJ. (dissenting). We respectfully dissent. "Because adefendant pleading guilty to a determinate sentence must be aware of the postreleasesupervision [PRS] component of that sentence in order to knowingly, voluntarily andintelligently choose among alternative courses of action, the failure of a court to adviseof postrelease supervision requires reversal of the conviction" (People v Catu, 4 NY3d242, 245 [2005]). Contrary to the conclusion of the majority, we agree withdefendant that the plea was not knowingly, voluntarily and intelligently entered and thatshe was not required to preserve for our review her challenge to [*4]the voluntariness of the plea (see People v Boyd, 12 NY3d390, 393 [2009]; People vLouree, 8 NY3d 541, 545-546 [2007]). It is undisputed that there was nomention of PRS at the plea proceeding and, based on our review of the record, weconclude that defendant was not "advised of what the sentence would be, including itsPRS term, at the outset of the sentencing proceeding" (People v Murray, 15 NY3d725, 727 [2010]). Rather, defendant did not learn that PRS would be imposed until"moments before imposi[tion of] the sentence" (People v McAlpin, 17 NY3d 936, 938 [2011]).
Significantly, the brief reference to PRS by the prosecutor at sentencing "cannotsubstitute for [County Court's] duty to ensure, at the time the plea is entered, that thedefendant is aware of the terms of the plea . . . , especially in light of thefact that it was not stated that [PRS] was required to be part of any sentence with adeterminate prison term" (People v Pett, 77 AD3d 1281, 1282 [2010] [internalquotation marks omitted]), and we conclude that the brief reference does not support thePeople's position that "Louree's rationale for dispensing with the preservationrequirement is not presently applicable" (Murray, 15 NY3d at 727; see People v Rivera, 91 AD3d498, 498 [2012]). Moreover, the majority's position, raised sua sponte, thatdefendant waived her right to assert the Catu error is not supported by the record.The prosecutor told defendant incorrectly just before the court imposed sentencethat PRS was "part of [her] plea," and she was offered no option other than to proceed tosentencing. Defendant indicated that she had discussed PRS with her attorney andunderstood what the prosecutor had said. When the prosecutor then asked if she "stillwish[ed] to go through with sentencing today," defendant responded in the affirmative.Despite that exchange, the record fails to demonstrate that defendant was ever informedthat there was an alternative to going forward with sentencing, namely, that she wasentitled to withdraw her guilty plea because of the court's failure to advise her of PRS atthe plea proceeding. As a result, defendant said nothing during the sentencing proceedingthat amounted to a waiver, i.e., "an intentional relinquishment or abandonment of aknown right or privilege" (Johnson v Zerbst, 304 US 458, 464 [1938]). Inparticular, defendant did not waive her "right to be sentenced in accordance with the pleaagreement" (People vMcDermott, 68 AD3d 1453, 1453 [2009]). We therefore vote to reverse thejudgment, vacate the plea, and remit the matter to County Court for further proceedingson the indictment. Present—Scudder, P.J., Peradotto, Sconiers, Valentino andMartoche, JJ.