| People v Flores |
| 2015 NY Slip Op 08905 [134 AD3d 425] |
| December 3, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v John A. Flores, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (David J. Klem ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), forrespondent.
Appeal from judgment of resentence, Supreme Court, New York County (Ronald A.Zweibel, J.), rendered June 6, 2014, resentencing defendant to a term of nine years, heldin abeyance, and the matter remanded for resentencing.
On a prior appeal (116 AD3d 644 [1st Dept 2014]), this Court ordered a plenaryresentencing proceeding, to include consideration of whether to grant youthful offendertreatment. The court at resentencing determined that defendant was not entitled to ayouthful offender adjudication, and stated that, as a result of the former determination, itwas without authority to consider a reduction in sentencing. Accordingly, the courtreimposed the nine-year sentence for defendant's conviction, upon a guilty plea, ofattempted assault in the first degree.
Defendant's waiver of his right to appeal was invalid, where the court failed toadequately ensure defendant's understanding that the right to appeal is separate anddistinct from the rights automatically forfeited by pleading guilty (see People v Lopez, 6 NY3d248, 256 [2006]). The court's statement that defendant was "waiving [his] right toappeal any legal issues connected with the case, including the sentence"(emphasis added) was incorrect, insofar as a defendant cannot waive certain rights, suchas the right to challenge the legality of a sentence or raise a speedy trial claim (Peoplev Seaberg, 74 NY2d 1, 9 [1989]). The court's further statement that the "right ofappeal is waived by [defendant], the rights I just mentioned are automatically waived bya plea" was insufficient to explain that the right to appeal is not included with thoseautomatically waived by a guilty plea, since the court had "just mentioned" that right.Moreover, defendant's execution of a written waiver "does not, standing alone, providesufficient assurance that the defendant is knowingly, intelligently and voluntarily givingup his or her right to appeal" (People v Pressley, 116 AD3d 794, 795 [2d Dept 2014],lv denied 23 NY3d 967 [2014] [internal quotation marks omitted]; see also People v Oquendo,105 AD3d 447, 448 [1st Dept 2013], lv denied 21 NY3d 1007 [2013]).
We decline to substitute our judgment for that of the sentencing court, whichdetermined that defendant was not an "eligible youth" for a youthful offenderadjudication based on a lack of "mitigating circumstances that bear directly upon themanner in which the crime was committed" and where defendant's participation in thecrime was not "relatively minor" (CPL 720.10 [3]). Indeed, defendant carried a gun to anencounter with known gang members, displayed the gun, handed the gun to acodefendant who fired shots into the air while being pursued by the gang members, and,upon taking the gun back from the codefendant, fired a shot that struck one of thepursuers.
However, the matter should be remanded for a new sentencing proceeding becausethe "record indicates possible harm," such as the court's reservation regarding the fairnessof the sentence to be imposed, emanating from the court's erroneous belief that it lackedauthority to reduce the sentence as a result of its determination that defendant was notentitled to a youthful offender finding (see People v Diaz, 304 AD2d 468, 468[1st Dept 2003], lv denied 100 NY2d [*2]561[2003]; see also People v Farrar, 52 NY2d 302, 308 [1981]).[FN1] At the resentencinghearing, the court stated that "since I don't find it appropriate to grant youthful offendertreatment under the circumstances[,] . . . I don't believe that this isappropriate or lawful for me to reduce the sentence." Defense counsel stated that, as wasdiscussed off the record, the court did have "the authority . . . to impose thesentence that it believes is appropriate in this case" instead of a sentence it consideredexcessive. The court responded, "All right. So I think we made the record" andreimposed the nine-year prison sentence. This exchange, referring to the off-the-recorddiscussion had among counsel and the court, suggests that the court might have reduceddefendant's sentence had it believed that it retained the authority to do so.
The record is ambiguous as to whether the court believed that the nine-year sentencewas excessive. The record contains evidence of mitigating factors upon which the courtmight have based a sentence reduction, such as the severe abuse defendant suffered as achild, his history of mental illness and impairment (e.g. his inability to spell simple wordssuch as "face" and engage in simple mathematics such as "3 x 5" at pre-sentencingexamination), and the progress defendant has made during his incarceration (e.g.working toward obtaining a GED and becoming a facilitator in an anti-violenceprogram).
Therefore, "the record indicates possible harm flowing from the court's error"(Diaz, 304 AD2d at 468), and the matter should be remanded for resentencing.Although the court did not find any mitigating circumstances bearing directly on themanner in which defendant committed the crime, it may have considered these othermitigating factors in determining whether a sentence reduction was warranted. However,we express no opinion on whether defendant is deserving of such a reduction. The courtneed not reconsider the youthful offender determination, but it should determineexplicitly whether defendant's sentence should be reduced upon resentencing.[FN2] We hold the appeal inabeyance pending that determination. Concur—Tom, J.P., Acosta, Richter andKapnick, JJ.
Footnote 1:As this Court did notpreviously consider whether the sentence was excessive (see 116 AD3d at 645),the court at resentencing retained its discretion to reduce the sentence and, upondeclining to grant youthful offender status, should not have "treated the duty ofresentencing as a ministerial function" (People v Desulma, 26 AD3d 443, 444 [2d Dept 2006];see also Farrar, 52 NY2d at 308; People v Bibbs, 17 AD3d 170 [1st Dept 2005]).
Footnote 2:"The court, however,should entertain an application by the People to withdraw consent to the plea if asanction less severe than that negotiated is to be imposed" (Farrar, 52 NY2d at308). This, of course, is simply the "counterpart of [a] defendant's right to withdraw theplea in the event the court, in the exercise of its discretion, determines that the sentenceagreed upon is inappropriate and indicates an intention to increase the severity of thepunishment" (id. at 308 n). "Absent defendant's showing of . . .prejudice [that would prevent the restoration to status quo ante] or other circumstancesmilitating against vacatur, . . . relief to the People would be proper"(id. at 308).