| People v Brewington |
| 2015 NY Slip Op 02805 [127 AD3d 1248] |
| April 2, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRubin Brewington, Appellant. |
William T. Morrison, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered January 7, 2013, convicting defendant upon his plea of guilty of the crimeof burglary in the second degree (two counts).
In satisfaction of two multicount indictments, defendant agreed to plead guilty to twocounts of burglary in the second degree. Defendant also executed an appeal waiver, butreserved his right to appeal on the sole issue of whether he could properly be sentencedas a persistent violent felony offender. At sentencing, defendant argued that a priorconviction from 1999 was obtained in violation of his constitutional rights and could notbe used as a predicate violent felony (see CPL 400.15 [7] [b]; 400.16).[FN1] County Court found thatthe People had met their burden of proving the predicate convictions, and sentenceddefendant as a persistent violent felony offender to concurrent prison terms of16
Defendant challenges the use of his 1999 conviction as a predicate violent felony,asserting that at the time of his plea to that charge he was not informed that the resultingsentence would include a mandatory period of postrelease supervision (hereinafter PRS).[*2]"Notwithstanding his failure to appeal from the[1999] conviction, defendant had an independent statutory right to challenge its use as apredicate conviction on the ground it was unconstitutionally obtained" (People vJohnson, 196 AD2d 408, 410 [1993], lv denied 82 NY2d 806 [1993], citingPeople v Harris, 61 NY2d 9 [1983]; see People v Abdus-Samad, 69 AD3d 516, 517 [2010],lv denied 15 NY3d 746 [2010]). It is well established that a court must advise adefendant of the direct consequences of a plea prior to sentencing, specifically includingthe existence and duration of any PRS requirement (see People v Catu, 4 NY3d 242, 245 [2005]; People v Bolivar, 118 AD3d91, 93-94 [2014]; People vBrown, 107 AD3d 1303, 1304 [2013]).
Here, the transcript of defendant's 1999 plea allocution reveals that he was notadvised that his plea would result in a mandatory period of PRS. Rather, defendant wasfirst informed about the PRS through the court's pronouncement of his sentence.Defendant made comments expressing his surprise as to the PRS immediately thereafter,but he was not afforded an opportunity to withdraw his plea, either during his originalsentencing or when he was later resentenced to adjust the duration of the PRS to conformwith the requirements of Penal Law § 70.45. Given the apparent infirmitiesin defendant's 1999 plea allocution, we find that County Court erred in accepting theresulting conviction as a predicate violent felony for the purpose of sentencing defendantas a persistent violent felony offender (see People v Santiago, 91 AD3d 438, 439 [2012];People v Brown, 67 AD2d 949, 950 [1979]; see generally People v Province, 47 Misc 3d 286 [Sup Ct,NY County 2015]).
Accordingly, defendant's sentence must be vacated; we therefore remit to CountyCourt for resentencing.[FN2] In view of this disposition, we need notaddress defendant's contention that the 1999 conviction cannot be used as a predicateviolent felony because he was denied the effective assistance of counsel during saidproceedings.
Lahtinen, J.P., Rose and Devine, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the County Court ofAlbany County for resentencing; and, as so modified, affirmed.
Footnote 1:Defendant had also beensubject to a 1991 conviction for burglary in the second degree, the validity of which wasnot disputed.
Footnote 2:We note that defendant's2013 plea agreement appears to have included a contingency sentence in the event of asuccessful appeal.