| People v Caza |
| 2014 NY Slip Op 02110 [115 AD3d 1118] |
| March 27, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KarenM. Caza, Appellant. |
—[*1] Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langley of counsel),for respondent.
Lahtinen, J.P. Appeals from two judgments of the County Court of Essex County(Meyer, J.), rendered April 26, 2012, convicting defendant upon her plea of guilty of thecrime of attempted forgery in the second degree (two counts).
Defendant was charged in two indictments with various crimes. She pleaded guilty totwo counts of attempted forgery in the second degree—one count for eachindictment—and waived her right to appeal. County Court thereafter sentenced herto a prison term of 1 to 3 years on each count, the terms to be served consecutively, andrecommended that she be placed in the shock incarceration program.
Defendant's sole contention upon this appeal is that County Court improperlyenhanced her sentence by departing from its conditional promise to make the two termsof imprisonment run concurrently. As she concedes, this argument is unpreserved for ourreview due to her failure to move to withdraw her plea, seek vacatur of the judgments ofconviction, or otherwise object at sentencing (see People v DePalma, 99 AD3d 1116, 1117 [2012], lvdenied 20 NY3d 1010 [2013]; People v Lewis, 98 AD3d 1186, 1186 [2012]). Herargument is, in any event, without merit. County Court specifically advised defendantthat it would not be bound by its conditional sentencing commitment should she fail tocooperate in the preparation of the presentence [*2]investigation report and that, under those circumstances,she would not be entitled to withdraw her guilty plea. Defendant thereafter repeatedlyattempted to avoid being interviewed by the Probation Department and, during theinterview itself, gave evasive and contradictory responses to questions. Inasmuch asdefendant was "fully informed during the plea colloquy of the conditions of the pleaagreement and the consequences for noncompliance," and the record demonstrates thatshe violated one of those conditions, we decline to exercise our interest of justicejurisdiction and take corrective action (People v Coffey, 77 AD3d 1202, 1204 [2010], lvdenied 18 NY3d 882 [2012]; see People v Hicks, 98 NY2d 185, 188-189[2002]; People v Godfrey,33 AD3d 623, 624 [2006], lv denied 8 NY3d 846 [2007]; cf. People v Becker, 80 AD3d795, 796-797 [2011]).
Rose and Egan Jr., JJ., concur.
McCarthy, J. (dissenting). When defendant pleaded guilty to two counts of attemptedforgery in the second degree, County Court made a conditional promise to run the termsof imprisonment concurrently. At sentencing, however, the court incorrectly stated that ithad made no commitments regarding sentencing. Rather than correct the court'smisconception, the People and defense counsel agreed with the court's erroneousstatement that no commitment had been made. On appeal, defendant's sole argument isthat the court erred by departing from its conditional promise. While that argument isunpreserved, we should exercise our interest of justice jurisdiction and take correctiveaction by vacating the sentences and remitting for further proceedings, becausedefendant's argument has merit and is unpreserved due to counsel's failure to properlyadvocate for defendant at sentencing (see People v Lewis, 98 AD3d 1186, 1186 [2012]; People v Gabbidon, 96 AD3d1235, 1236 [2012]).
For a court to enhance a sentence or deviate from a conditional promise, thedefendant must violate "an explicit and objective plea condition" (People v Becker, 80 AD3d795, 796 [2011]). Here, County Court conditioned its promise of concurrentsentencing on defendant complying with certain terms. The only condition at issue hereis that she "cooperate with Probation in the preparation of that presentence report." Themajority states that defendant "repeatedly attempted to avoid being interviewed by theProbation Department." This statement is presumably based on the presentenceinvestigation report (hereinafter PSI), which states that the writer made multiple attemptsto communicate with defendant before making telephone contact, and that defendantmade five attempts to evade an interview. No further details are given regarding the PSIwriter's difficulty in contacting defendant. It could be that the writer had an incorrectphone number or she called but defendant had no answering machine. Without furtherinformation, the difficulty in reaching defendant cannot be deemed intentional orattributed to her. As for the alleged five attempts at evasion (all occurring during a singlephone call), the writer notes that defendant indicated that she was required to completemental health and substance abuse evaluations, and she had already scheduledevaluations during three of the times offered for the interview with the ProbationDepartment. For two other offered appointment times, defendant referred to herdifficulties with transportation. The PSI does not contain any evidence that theseproffered excuses were fabricated. Indeed, it would be responsible of defendant to turndown potential interview times when she was already booked for court-orderedevaluations or when she would be unable to obtain transportation. According to the PSI,defendant appeared at the interview once it was scheduled (compare People vStanley, [*3]100 AD3d 1152, 1152-1153 [2012]).With the limited information before us, we cannot find that the difficulty in arranging aninterview time constitutes a lack of cooperation in completing the PSI.
During the interview, the PSI writer deemed defendant's answers vague, evasive andcontradictory. County Court's condition, however, was that defendant "cooperate," whichis a subjective term. The condition was not that defendant give information that wasconsistent with other sources, or even that she provide "truthful" answers (see Peoplev Gabbidon, 96 AD3d at 1236; People v Becker, 80 AD3d at 796-797;compare People v Hicks, 98 NY2d 185, 187-189 [2002]; People v Coffey, 77 AD3d1202, 1204 [2010], lv denied 18 NY3d 882 [2012]). As the condition thatdefendant allegedly violated was not explicit and objective in this context, and defendantdid not concede that she violated any condition, the court erred in deviating from itsconditional promise (see People v Gabbidon, 96 AD3d at 1236; comparePeople v Hicks, 98 NY2d at 189). Absent a proven violation, the court was requiredto either adhere to its promise to impose the sentences concurrently or, if the court feltthat it could not abide by its promise due to information in the PSI, provide defendantwith an opportunity to withdraw her plea before imposing an enhanced sentence (seePeople v Lewis, 98 AD3d at 1187; People v Gabbidon, 96 AD3d at 1236;People v Becker, 80 AD3d at 797). Under the circumstances, we should modifythe judgments in the interest of justice by vacating the sentences and remitting for furtherproceedings.
Garry, J., concurs. Ordered that the judgments are affirmed.