| People v Ballato |
| 2015 NY Slip Op 04140 [128 AD3d 846] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Ballato, Appellant. |
Steven A. Feldman, Uniondale, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Iliou, J.), rendered May 1, 2013, convicting him of attempted burglary in the seconddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the plea is vacated, and the matteris remitted to the County Court, Suffolk County, for further proceedings on theindictment.
In February 2010, the defendant pleaded guilty to burglary in the second degree inexchange for a sentence directing him to a judicial diversion program. After thedefendant violated his contract for the judicial diversion program, he withdrew hisoriginal plea of guilty and entered into a new plea bargain. Under the new agreement, thedefendant pleaded guilty to attempted burglary in the second degree in exchange for apromised sentence of three years of imprisonment followed by five years of postreleasesupervision. As part of the agreement, the County Court also promised that it would signa document known colloquially as a "violent felony override," which, according to thecourt, would make the defendant eligible for certain programs in prison. Immediatelyafter the defendant pleaded guilty pursuant to the new agreement, the court imposed thebargained-for sentence, and stated to the defendant that the violent felony override would"open up a world of programs to you in the correctional facility."
On appeal, the defendant contends that his plea bargain was invalid because theCounty Court promised to issue a "violent felony override" in exchange for his plea ofguilty, but the purported violent felony override did not actually make the defendanteligible for any programs in prison.
As explained by this Court in People v Lynch (121 AD3d 717, 718 [2014]), a "violentfelony override" is "an imprecise and potentially confusing term that is sometimes usedto describe a document referred to in 7 NYCRR 1900.4 (c) (1) (iii) that permits theDepartment of Corrections and Community Supervision (hereinafter DOCCS) toascertain whether an inmate has met one of the threshold requirements to be eligible for atemporary release program despite conviction of a specified violent felony offense"(id.; see Correction Law § 851 [2]; Executive Order[Spitzer] No. 9 [9 NYCRR 6.9]; Executive Order [A. Cuomo] No. 2 [9 NYCRR 8.2]; 7NYCRR 1900.4 [c] [1] [ii], [iii]; [2]). "Certain subdivisions of the specified violentfelony offenses will not disqualify an inmate from eligibility for temporary release. Thedocument provided for in 7 NYCRR 1900.4 (c) (1) (iii) need only set forth the exactoffense, including the section, and subdivision if any, of the crimes of [*2]which the inmate was convicted. When the documentindicates that the inmate was convicted of a subdivision of one of the enumerated violentfelony offenses that does not automatically disqualify the inmate from eligibility fortemporary release, the inmate may use it to establish that he has met one of the thresholdrequirements for eligibility" (People v Lynch, 121 AD3d at 718). The documentitself does not qualify an inmate for eligibility for temporary release (see id.) "It isfor DOCCS, and not the court or the district attorney, to determine whether convictionunder a particular section and subdivision disqualifies an inmate from eligibility"(id.; see generally 7 NYCRR 1900.4). The issuance of the documentspecified in 7 NYCRR 1900.4 (c) (1) (iii) is not discretionary, and a defendant is entitledto have the exact statutory provisions under which he or she was convicted specified inthe sentence and commitment (see People v Lynch, 121 AD3d at 718).
As part of the plea agreement, the County Court promised the defendant that it wouldsign a "violent felony override," which would make the defendant eligible for severalprograms in prison. Since the document specified in 7 NYCRR 1900.4 (c) (1) (iii) doesnot, by itself, qualify an inmate for eligibility for temporary release, and eligibility fortemporary release programs are determined by DOCCS, the court exceeded its authorityby promising the defendant something that it had no authority to promise in exchange forthe defendant's plea of guilty. Under these circumstances, the defendant's plea of guiltywas not knowing, voluntary, and intelligent (see People v Fuertes, 105 AD3d 974 [2013]). Moreover,contrary to the People's contention, the defendant's claim is not subject to thepreservation requirement, since he could not be expected to object to the County Court'spromise under the circumstances (cf. People v Turner, 24 NY3d 254 [2014]; People v Molinaro, 126 AD3d726 [2015]).
Accordingly, the judgment is reversed, the plea vacated, and the matter remitted tothe County Court, Suffolk County, for further proceedings on the indictment.
The defendant's remaining contention is academic in light of our determination. Hall,J.P., Sgroi, Miller and Hinds-Radix, JJ., concur.