| People v Streber |
| 2016 NY Slip Op 08683 [145 AD3d 1531] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v David Streber, Jr., Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.),rendered July 9, 2013. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of stolen property in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the motion is granted, the plea is vacated, and the matter is remitted to MonroeCounty Court for further proceedings on the indictment.
Memorandum: On appeal from a judgment convicting him, upon a plea of guilty, ofcriminal possession of stolen property in the fourth degree (Penal Law§ 165.45 [1]), defendant contends that his plea was not knowingly,voluntarily, or intelligently entered because County Court failed to inform him of a directconsequence of his plea. We agree and therefore reverse the judgment, grant defendant'smotion to withdraw his guilty plea, vacate the plea, and remit the matter to County Courtfor further proceedings on the indictment.
"It is well settled that, in order for a plea to be knowingly, voluntarily andintelligently entered, a defendant must be advised of the direct consequences of that plea"(People v Jones, 118 AD3d1360, 1361 [2014]; seePeople v Harnett, 16 NY3d 200, 205 [2011]; People v Hill, 9 NY3d189, 191 [2007], cert denied 553 US 1048 [2008]). Direct consequences of aplea are those that have "a definite, immediate and largely automatic effect on [a]defendant's punishment" (People v Ford, 86 NY2d 397, 403 [1995]) and include,among other "core components of a defendant's sentence[,]" the term of imprisonment(Harnett, 16 NY3d at 205). Here, although the court during defendant'sarraignment articulated the terms of a plea offer that included the alternative sentencesdefendant would receive if he was or was not successful in the Judicial DiversionProgram, the court did not state those alternative sentences on the record during the pleacolloquy. Specifically, although the court stated during the plea colloquy that defendantwould receive a "cap of felony probation if successful[,]" the court did not articulate thesentence that defendant would receive if he was unsuccessful.
Furthermore, the Judicial Diversion Program Contract (Contract) signed bydefendant on the date he pleaded guilty contradicts the terms of the plea agreement setforth in the transcript of defendant's arraignment. Namely, during the arraignment, thecourt stated, "if unsuccessful, a cap of one and a half to three. If successful, a cap of fiveyears probation." In contrast, the Contract provides that defendant would receive "felonyprobation" if he was unsuccessful, but it does not reflect that defendant was promisedany particular sentence in the event that he was successful with the program. Thus, eventhough the court ensured during the plea colloquy that no promises had been made todefendant "other than the promises placed on the record and contained in the[C]ontract[,]" the promises made on the record were inconsistent with the promises madein the Contract.
To the extent that the People contend that the court corrected those inconsistencieswhen the Contract was later amended to reflect the terms of the plea agreement, we rejectthat contention. The Contract was amended and re-signed by defendant one week afterdefendant's guilty plea was taken, and the Court of Appeals has made clear that the courtmust inform the defendant of the direct consequences of a plea "[p]rior to accepting aguilty plea" (Hill, 9 NY3d at 191). Moreover, there is no evidence in the recordthat defendant was afforded an opportunity to withdraw his guilty plea on the date here-signed the amended Contract. Finally, we reject the People's contention that the court'samendment of the Contract was merely ministerial or clerical in nature (see People v Howard, 1 AD3d1015, 1016 [2003]; see also People v Minaya, 54 NY2d 360, 364 [1981],cert denied 455 US 1024 [1982]). The record is insufficient for us to concludethat the court's amendment "fully comported with the expectations of the court, theprosecutor, and the defendant at the time the plea was originally entered"(Howard, 1 AD3d at 1016 [internal quotation marks omitted]), and thus the courtwas not permitted to make the amendment as a ministerial or clerical matter.Present—Smith, J.P., DeJoseph, Curran and Scudder, JJ.