People v Lacroix

2015 NY Slip Op 08663 [133 AD3d 1095]

November 25, 2015

Appellate Division, Third Department

As corrected through Wednesday, December 30, 2015

[*1]

The People of the State of New York, Respondent, vJohn C. Lacroix, Appellant.

G. Scott Walling, Schenectady, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.

Garry, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered March 12, 2014, convicting defendant upon his plea of guilty of the crimeof criminal nuisance in the first degree.

Defendant, who has a history of drug and alcohol abuse, maintained a residence inthe City of Glens Falls, Warren County where people gathered for the purpose of sellingillegal drugs. Following his arrest, he waived indictment and agreed to be prosecuted bya superior court information charging him with criminal nuisance in the first degree. Hepleaded guilty and waived his right to appeal. The terms of his plea agreement included aterm of interim probation and, upon successful completion, defendant was to be alloweda reduction to a misdemeanor, with a favorable sentence to be imposed. County Courtfurther advised defendant that if he failed to successfully complete the interim probation,he would be sentenced to 11/3 to 4 years in prison. Defendant was releasedon his own recognizance after entering the plea, subject to specified conditions,including abstention from the use of drugs or alcohol. He thereafter suffered a heroinoverdose, resulting in a traumatic brain injury. Following his hospitalization and a shortperiod of rehabilitation, he fled the jurisdiction and enrolled in a drug treatment programin California, but was discharged prior to completion. Defendant was arrested upon hisreturn to New York. He then moved to withdraw his guilty plea (see CPL 220.60[3]) or, alternatively, to dismiss the superior court information in the interest of justice(see CPL 170.40). County Court denied the motion and sentenced defendant as asecond felony offender to 2 to 4 years in prison. Defendant appeals.

[*2] Defendant's contention that his guilty plea was notknowing, voluntary or intelligent because County Court failed to properly inform him ofthe resulting sentence if he violated the terms of interim probation is not precluded by hiswaiver of the right to appeal and was preserved by his motion to withdraw the plea (see People v White, 85 AD3d1493, 1493 [2011]; Peoplev First, 62 AD3d 1043, 1044 [2009], lv denied 12 NY3d 915 [2009]).As defendant argues, he was misadvised at the time of the plea that the sentence to beimposed was 11/3 to 4 years in prison, when, in fact, it was 2 to 4 years(see Penal Law § 70.06 [3] [e]; [4] [b]). Although the prosecutorstated later in the plea hearing that he "believed" that the maximum sentence was 2 to 4years in prison, this was not confirmed by the court. The record thus fails to reveal thatdefendant was accurately advised of the essential terms and conditions of the pleaagreement (see People vVences, 125 AD3d 1050, 1050-1051 [2015]; compare People v Massia, 131AD3d 1280, 1281 [2015]). Accordingly, his motion to withdraw his plea shouldhave been granted. Defendant's remaining contentions are rendered academic by thisdecision.

Lahtinen, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the judgment is reversed,on the law, without costs, motion to withdraw plea granted, and matter remitted to theCounty Court of Warren County for further proceedings not inconsistent with thisCourt's decision.