| People v Green |
| 2016 NY Slip Op 04559 [140 AD3d 1660] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vKahleif Green, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered December 1, 2010. The judgment convicted defendant, upon his plea of guilty,of robbery in the third degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the sentence and as modified the judgment is affirmed, and thematter is remitted to Onondaga County Court for further proceedings in accordance withthe following memorandum: Defendant appeals from a judgment convicting him uponhis plea of guilty of robbery in the third degree (Penal Law § 160.05) andassault in the second degree (§ 120.05 [3]). We note at the outset that weagree with defendant that the waiver of the right to appeal is not valid. County Courtinformed defendant that, if he did not sign a written waiver of the right to appeal, thecourt would not be bound to honor the sentence promise and could impose up to themaximum sentence. We conclude that the court "thereby threatened defendant with agreater term of incarceration in the event that defendant did not sign the waiver, thusrendering the court's colloquy concerning the waiver impermissibly coercive" (People v Quinones, 129 AD3d1699, 1700 [2015]).
Defendant failed to preserve for our review his contention that his guilty plea was notvoluntarily entered, inasmuch as he failed to move to withdraw the plea or to vacate thejudgment of conviction (see People v Brown, 305 AD2d 1068, 1068-1069[2003], lv denied 100 NY2d 579 [2003]). In any event, defendant's contentionlacks merit. First, "the fact that defendant was required to accept or reject the plea offerwithin a short time period does not amount to coercion" (People v Jenkins, 117 AD3d1528, 1529 [2014], lv denied 23 NY3d 1063 [2014] [internal quotationmarks omitted]). Second, "[t]he fact that the possibility of a federal prosecution may haveinfluenced defendant's decision to plead guilty is insufficient to establish that the pleawas coerced" (People vHobby, 83 AD3d 1536, 1536 [2011], lv denied 17 NY3d 859[2011]).
We agree with defendant's further contention that the court erred in sentencing himas a second felony offender without conducting a hearing. Defendant initially told thecourt that he wished to challenge the constitutionality of his predicate felony convictionbut, when the court stated that it would consider defendant's challenge to be a violationof the plea agreement, defendant agreed not to challenge the predicate felony conviction,essentially waiving his right to a hearing. We agree with defendant that his waiver wasthe product of impermissible coercion by the court because, although the court" 'did advise defendant during the plea hearing that he was going to be sentencedas a [second] felony offender, it never specifically instructed him that admitting such[second] felony offender status was a condition of the plea agreement and that his failureto do so would result in a more severe sentence' " (People v VanHooser[appeal No. 2], 126 AD3d 1531, 1532 [2015]). We therefore modify the judgment byvacating the sentence, and we remit the matter to County Court for resentencing"following a hearing in which the People will have the burden of proof of establishing. . . whether defendant is a [second] . . . felony offender"(id. at 1532-1533). In light of our determination, we do not address defendant'schallenge to the severity of the sentence. Present—Smith, J.P., Centra, DeJoseph,Curran and Scudder, JJ.