People v Jones

2017 NY Slip Op 00216 [146 AD3d 1078]

January 12, 2017

Appellate Division, Third Department

As corrected through Wednesday, March 1, 2017

[*1]

The People of the State of New York,Respondent, v Nasjuan Jones, Appellant.

Terrence M. Kelly, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Jonathan Catania, Law Intern),for respondent.

Egan Jr., J. Appeals (1) from a judgment of the Supreme Court (Milano, J.), renderedNovember 12, 2013 in Schenectady County, convicting defendant upon his plea of guiltyof the crimes of assault in the first degree and assault in the second degree, and (2) froma judgment of said court, rendered January 3, 2014 in Schenectady County, whichresentenced defendant on his conviction of assault in the first degree.

In May 2013, defendant was charged in a 13-count indictment with variouscrimes—the most serious of which was attempted murder in the second degree.Following his arraignment, defendant was remanded to the Schenectady CountyCorrectional Facility to await trial. While confined to that facility, defendant allegedlycaused physical injury to a peace officer, as a result of which he was indicted andcharged in August 2013 with two counts of assault in the second degree. Thereafter, inOctober 2013, defendant pleaded guilty to one count of assault in the first degree (in fullsatisfaction of the May 2013 indictment) and one count of assault in the second degree(in full satisfaction of the Aug. 2013 indictment) and waived his right to appeal. Pursuantto the terms of the plea agreement, defendant was to be sentenced to concurrent prisonterms of 15 years on the first degree assault conviction and three years on the seconddegree assault conviction—with a single period of postrelease supervision rangingbetween 21/2 to 5 years. During the course of the plea colloquy, SupremeCourt expressly advised defendant of the maximum terms of incarceration that he couldface and twice informed defendant of the range of postrelease supervision that could beimposed.

Thereafter, in November 2013, defendant appeared for sentencing, at which timesome [*2]discussion was had as to whether defendantwould be subject to two "concurrent" terms of postrelease supervision or a single term ofpostrelease supervision as to "the more serious level offense in this case." SupremeCourt, deeming this to "be a distinction without a difference," sentenced defendant inaccordance with the terms of the plea agreement and imposed a single31/2-year term of postrelease supervision in connection with defendant'sconviction of assault in the second degree. Both Supreme Court's commitment order andthe resulting uniform sentence and commitment orders reflect that no period ofpostrelease supervision was imposed with respect to defendant's conviction of assault inthe first degree.

The Department of Corrections and Community Supervision subsequently advisedSupreme Court of its failure to impose a period of postrelease supervision upondefendant's first degree assault conviction, as the result of which defendant returned toSupreme Court in January 2014 for resentencing. At that time, Supreme Court adviseddefendant of its intention to impose a 31/2-year term of postreleasesupervision in connection with defendant's conviction of assault in the first degree,which would run concurrently, i.e., merge, with the period of postrelease supervisionalready imposed upon the assault in the second degree conviction. The People reiteratedthat the contemplated resentencing would in no way enhance or extend the period ofpostrelease supervision to which defendant already was subject and, when questioned bySupreme Court as to whether such resentencing would "in any way change any of [his]answers to the plea colloquy," defendant replied, "No, your honor" and indicated that hewished to proceed with resentencing. To that end, Supreme Court resentenced defendantto 15 years in prison for assault in the first degree—followed by31/2 years of postrelease supervision. The amended uniform sentence andcommitment order, however, erroneously indicated that defendant would be subject toonly three years of postrelease supervision in connection with his conviction of assault inthe first degree. Defendant now appeals, primarily contending that the subject pleas mustbe vacated.

To the extent that defendant's brief may be read as challenging the legality and/orvoluntariness of his guilty plea, although this issue survives defendant's uncontestedwaiver of the right to appeal, it is unpreserved for our review in the absence of anappropriate postallocution motion (see People v Williams, 27 NY3d 212, 221-222 [2016]; People v Terenzi, 57 AD3d1228, 1229 [2008], lv denied 12 NY3d 822 [2009]). Notably, "defendantwas made aware that he would be subject to a period of postrelease supervision at theoutset of the resentencing proceeding, and nonetheless failed to move to withdraw hisplea prior to the imposition of the resentence" (People v Ullah, 130 AD3d 759, 760 [2015], lvdenied 26 NY3d 1043 [2015]). Moreover, the record reflects that, once defendantwas confronted with Supreme Court's initial failure to impose a period of postreleasesupervision upon the assault in the first degree conviction, Supreme Court expresslyasked defendant whether he was willing "to stand by that conviction and that plea" and toproceed with resentencing, to which defendant replied, "Yes." Accordingly, we declineto exercise our interest of justice jurisdiction to take corrective action on this point.

Nor are we persuaded that defendant is entitled to vacatur of his plea under People v Catu (4 NY3d242 [2005]) and its progeny (see e.g. People v Turner, 24 NY3d 254 [2014]; People v Louree, 8 NY3d541 [2007]), as this simply is not a case where the sentencing court utterly failed toapprise a criminal defendant that he or she would be subject to a period of postreleasesupervision and/or neglected to specify the promised or potential duration thereof (compare People v Meyers, 73AD3d 1231, 1231 [2010]). To the contrary, a review of defendant's plea colloquymakes clear that he was aware that he would be subject to a period of postreleasesupervision and, further, that he was specifically advised as to the range of postreleasesupervision (21/2 to 5 years) that could be imposed (see People vGarcia, 89 AD3d [*3]1325, 1326 [2011], lvdenied 18 NY3d 924 [2012])—facts that are in no way altered by SupremeCourt's and counsels' mistaken belief that the court could impose a single term ofpostrelease supervision instead of two separate but concurrent terms of postreleasesupervision upon the assault in the first degree and assault in the second degreeconvictions. Moreover, although the term of postrelease supervision imposed upon theassault in the second degree conviction (31/2 years) indeed exceeded thestatutory maximum of three years (see Penal Law §§ 70.45 [2][e]; 120.05 [7]), an issue that we will address separately, this is not a case where adefendant was promised a lesser term and received a greater term (compare People v Bryant, 117AD3d 1551, 1551-1552 [2014]; People v Miller, 62 AD3d 1047, 1048 [2009]). Hence, itcannot be said that defendant failed to reap the benefit of his bargain.

That said, there indeed are errors as to the postrelease supervision components of therespective sentences—both with respect to the term of postrelease supervisionactually imposed upon defendant's conviction of assault in the second degree and as tothe term of postrelease supervision reflected on the uniform sentence and commitmentorders relative to defendant's conviction of assault in the first degree. Specifically, asnoted previously, the maximum period of postrelease supervision that may be imposedupon defendant's conviction of assault in the second degree is three years, not31/2 years (see Penal Law §§ 70.45 [2] [e];120.05 [7]), and the term of postrelease supervision actually imposed by Supreme Courtwith respect to defendant's conviction of assault in the first degree was31/2 years, not three years as reflected on the amended uniform sentenceand commitment order. As a result, the period of postrelease supervision imposed uponthe assault in the first degree conviction is inaccurately reflected on the amended uniformsentence and commitment order, and the period of postrelease supervision imposed uponthe assault in the second degree conviction is illegal. Accordingly, the postreleasesupervision component of the sentence imposed upon defendant's conviction of assault inthe second degree is vacated, and this matter is remitted to Supreme Court for theimposition of an appropriate period of postrelease supervision as to thatconviction^[FN*]and, further, for the entry of a second amended uniform sentence and commitment formto accurately reflect the 31/2 years of postrelease supervision properlyimposed upon defendant's conviction of assault in the first degree.

Peters, P.J., McCarthy, Lynch and Devine, JJ., concur. Ordered that the judgmententered November 12, 2013 is modified, on the law, by vacating the period of postreleasesupervision imposed upon defendant's conviction of assault in the second degree; matterremitted to the Supreme Court for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed. Ordered that the judgment entered January 3,2014 is affirmed, and matter remitted for the entry of a second amended uniformsentence and commitment form.

Footnote *:While this Court couldsimply reduce the period of postrelease supervision imposed upon defendant's convictionof assault in the second degree, we undertake such action only where it is possible todiscern what period of postrelease supervision the sentencing court would have imposed(see e.g. People v Bussom,125 AD3d 1331, 1332 [2015]; People v Guay, 72 AD3d 1201, 1205 [2010], affd18 NY3d 16 [2011]). Here, Supreme Court expressly indicated that it did not intend toimpose the maximum period of postrelease supervision. Hence, we deem it appropriate toremit this matter to Supreme Court for resentencing as to the period of postreleasesupervision to be imposed upon defendant's conviction of assault in the second degree(see e.g. People v Boula,106 AD3d 1371, 1373 [2013], lv denied 21 NY3d 1040 [2013]; People v McCoy, 100 AD3d1422, 1423 [2012])—notwithstanding the fact that said period will mergewith the 31/2 years of postrelease supervision imposed upon defendant'sconviction of assault in the first degree (see Penal Law § 70.45 [5][c]).