| People v Robinson |
| 2018 NY Slip Op 02490 [160 AD3d 774] |
| April 11, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jason Robinson, Appellant. |
Michele Marte-Indzonka, Newburgh, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Elizabeth L. Schulz of counsel), forrespondent.
Appeal by the defendant from a resentence of the County Court, Orange County (Robert H.Freehill, J.), imposed August 20, 2015, which, upon his conviction of criminal sale of a firearmin the third degree under indictment No. 14-00539, upon his plea of guilty, imposed a period offive years of postrelease supervision in addition to the determinate term of imprisonmentpreviously imposed on the conviction of criminal sale of a firearm in the third degree.
Ordered that the resentence is reversed, on the law, and the matter is remitted to the CountyCourt, Orange County, for further proceedings in accordance herewith.
The defendant was charged under two separate indictments for various crimes that allegedlyoccurred on two separate dates. The defendant subsequently agreed to plead guilty to criminalsale of a controlled substance in or near school grounds under indictment No. 14-00077, andcriminal sale of a controlled substance in the third degree and criminal sale of a firearm in thethird degree under indictment No. 14-00539.
In return for these pleas of guilty, the County Court promised to impose determinate terms of5 years' imprisonment on all three convictions. The court noted that the defendant would receiveconcurrent periods of postrelease supervision in addition to the terms of imprisonment, indicatingthat he would receive periods of postrelease supervision that were between 1
The defendant pleaded guilty on November 17, 2014. When he appeared for sentencing onDecember 16, 2014, the County Court informed him that it could not keep its sentencing promisebecause it was required to run the sentence of imprisonment under indictment No. 14-00077consecutively with the sentences of imprisonment imposed under the other indictment. Withoutspecifying the enhanced sentence, the court stated that it would reduce the terms of imprisonmentin an attempt to approximate the total aggregate sentence that it had promised.
[*2] The defendant, through his attorney, did not consent to theenhanced sentence. The defendant's attorney argued that the defendant was entitled to thesentence that was originally promised.
The court did not give the defendant an opportunity to withdraw his guilty pleas. Rather, itproceeded to sentence the defendant to (1) a determinate term of three years' imprisonment plustwo years of postrelease supervision on the conviction under indictment No. 14-00077, and (2)concurrent determinate terms of three years' imprisonment plus two years of postreleasesupervision on the conviction of criminal sale of a controlled substance in the third degree, andfour years' imprisonment plus two years of postrelease supervision on the conviction of criminalsale of a firearm in the third degree under indictment No. 14-00539.
The County Court directed that the terms of imprisonment imposed under indictment No.14-00539 were to run consecutively with the term of imprisonment imposed under indictmentNo. 14-00077. The court also directed that the periods of postrelease supervision imposed underindictment No. 14-00539 were to run concurrently with the period of postrelease supervisionimposed under indictment No. 14-00077. The defendant did not appeal from either of thejudgments entered under the two indictments.
On August 20, 2015, the defendant was resentenced on his conviction for criminal sale of afirearm in the third degree under indictment No. 14-00539. At the resentencing proceeding, thedefendant was informed that the term of postrelease supervision that was imposed on thatconviction was illegal. Defense counsel argued that the defendant was entitled to withdraw hisplea of guilty if the court was unable to keep its sentencing promise. The court did not afford thedefendant the opportunity to do so. Over the defendant's objection, the court amended thesentence under indictment No. 14-00539, by vacating the two-year period of postreleasesupervision imposed on the conviction of criminal sale of a firearm in the third degree andresentencing the defendant to a concurrent period of five years' postrelease supervision on thatconviction.
The defendant appeals from the resentence. We reverse the resentence, and remit the matterto the County Court, Orange County, for further proceedings in accordance herewith.
With limited exception not applicable here, "[a]n appeal to an intermediate appellate courtmay be taken as of right by the defendant from . . . [a] sentence other than one ofdeath, as prescribed in subdivision one of section 450.30" (CPL 450.10 [2]). That subdivisionprovides that "[a]n appeal by the defendant from a sentence . . . may be based uponthe ground that such sentence either was (a) invalid as a matter of law, or (b) harsh or excessive"(CPL 450.30 [1]).
As relevant here, "[a]n appeal from a sentence, within the meaning of this section andsection[ ] 450.10 . . . means an appeal from either the sentence originally imposedor from a resentence following an order vacating the original sentence" (CPL 450.30 [3]). "Forpurposes of appeal, the judgment consists of the conviction and the original sentence only, andwhen a resentence occurs more than thirty days after the original sentence, a defendant who hasnot previously filed a notice of appeal from the judgment may not appeal from the judgment, butonly from the resentence" (CPL 450.30 [3]). Accordingly, the Court of Appeals has stated that onan appeal from a resentence "[t]he defendant's right to appeal is limited to the correction of errorsor the abuse of discretion at the resentencing proceeding" (People v Lingle, 16 NY3d 621, 635 [2011]).
Here, the defendant contends that both of the underlying judgments should be reversed andthe underlying guilty pleas vacated on the ground that the County Court deviated from the termsof the plea agreement by imposing an aggregate term of seven years' imprisonment instead of theaggregate term of five years' imprisonment that it had promised the defendant when he agreed toplead guilty. To the extent that the defendant seeks vacatur of the underlying pleas and reversalof the underlying judgments due to an alleged violation of the plea agreement, such a contentionis not reviewable on this appeal since the defendant has only appealed from the resentence(see CPL 450.30 [3]; People vJordan, 16 NY3d 845, 846 [2011]; People v Toney, 116 AD3d 607, 607 [2014]; People v Benoit, 83 AD3d 728,728 [2011]; People v Fields, 79AD3d 1147, 1147-1148 [2010]; People v Ferrufino, 33 [*3]AD3d 623, 623 [2006]; People v Luddington, 5 AD3d 1042, 1042 [2004]). Similarly, thedefendant's further contentions that he was deprived of the effective assistance of counsel at theplea proceedings and at the original sentencing, and that the original sentence was excessive, maynot be raised on this appeal from the resentence only (see CPL 450.30 [3]; People vBenoit, 83 AD3d at 728; People v Ferrufino, 33 AD3d at 623).
However, to the extent that the defendant seeks reversal of the resentence on the ground thatthe County Court erred in imposing an enhanced term of postrelease supervision in violation ofthe plea agreement without first affording him the opportunity to withdraw his plea, hiscontention is reviewable on the merits on this appeal from the resentence (see People vWheeler, 91 AD2d 647 [1982]; cf. People v Jordan, 16 NY3d at 846; People v DeSpirito, 27 AD3d 479[2006]; People v Luddington, 5AD3d 1042 [2004]).
"A trial court has the constitutional duty to ensure that a defendant, before pleading guilty,has a full understanding of what the plea connotes and its consequences" (People v Catu, 4 NY3d 242,244-245 [2005] [internal quotation marks omitted]; see People v Turner, 24 NY3d 254, 258 [2014]; People v Cornell, 16 NY3d 801,802 [2011]). "While a trial court has no obligation to explain to defendants who plead guilty thepossibility that collateral consequences may attach to their criminal convictions, the court mustadvise a defendant of the direct consequences of the plea" (People v Catu, 4 NY3d at244). "Postrelease supervision is a direct consequence of a criminal conviction" (id.).
"Because a defendant pleading guilty to a determinate sentence must be aware of thepostrelease supervision component of that sentence in order to knowingly, voluntarily andintelligently choose among alternative courses of action, the failure of a court to advise ofpostrelease supervision requires reversal of the conviction" (id. at 245; see People v McAlpin, 17 NY3d936, 938 [2011]; People v Fox,139 AD3d 871, 871-872 [2016]; People v Fuertes, 105 AD3d 974, 975 [2013]; People v Key, 64 AD3d 793, 793[2009]).
It is not enough for a court to generally inform a defendant that a term of postreleasesupervision will be imposed as a part of the sentence (see People v Boyd, 12 NY3d 390, 393 [2009]; People v Grimm, 69 AD3d 1231,1232 [2010]). Rather, for a plea of guilty to be knowing, intelligent, and voluntary, the courtmust inform the defendant of either the specific period of postrelease supervision that will beimposed or, at the least, the maximum potential duration of postrelease supervision that may beimposed (see People v Boyd, 12 NY3d at 393; People v Curtis, 119 AD3d 705, 705 [2014]; People v Brown, 107 AD3d 1303,1304 [2013]; People v Blunt, 93AD3d 675, 677 [2012]; cf. People vLopez, 51 AD3d 1210, 1211 [2008]).
Furthermore, as is the case with a sentence of incarceration, if a court's promise of a specificterm or range of postrelease supervision "is the product of a negotiated plea agreement, and thesentencing court is unable to fulfill its . . . promise due to the illegality of that[portion of the] sentence, the appropriate remedy is to give the defendant the opportunity to eitheraccept an amended lawful sentence or withdraw his plea of guilty and be restored to pre-pleastatus" (People v Hollis, 309 AD2d 764, 765 [2003]; see People v Dallas, 107 AD3d 912, 912 [2013]; People vBullard, 84 AD2d 845 [1981]; seealso People v Wolfolk, 134 AD3d 1059, 1059 [2015]; People v Peale, 122 AD2d353, 354 [1986]; People v Miller, 38 AD2d 745, 746 [1972]; accord People v Zeigler, 128 AD3d737, 737 [2015]).
Here, during the plea proceedings, the County Court indicated that it would impose periodsof postrelease supervision that were between 1
Under these circumstances, the County Court erred in resentencing the defendant to a periodof postrelease supervision on the conviction of criminal sale of a firearm in the third degree thatexceeded the period of postrelease supervision that had been promised to the defendant in [*4]connection with the plea agreement, without first affording thedefendant the opportunity to withdraw his plea of guilty to that count (see People vDallas, 107 AD3d at 912; see also People v Wolfolk, 134 AD3d at 1059; People v Donofrio, 123 AD3d 941,942 [2014]). Furthermore, inasmuch as the defendant's plea of guilty on indictment No.14-00077, and his plea of guilty to the charge of criminal sale of a controlled substance in thethird degree under indictment No. 14-00539 were induced by the promise that the sentences onthe two indictments would all run concurrently, the defendant must be afforded the opportunityto withdraw his pleas of guilty under both of the indictments, for all three convictions (see People v Sosa-Rodriguez, 63 AD3d861, 863 [2009]; People vPuntervold, 60 AD3d 1090, 1090 [2009]; People v Sellers, 222 AD2d 941[1995]; cf. People v Murrell, 153AD3d 730, 731-732 [2017]).
Accordingly, under the particular circumstances of this case, the resentence must be reversedand the matter remitted to the County Court to afford the defendant the opportunity to withdrawhis pleas of guilty under both of the indictments (see People v Wheeler, 91 AD2d 647[1982]). In the event that the defendant avails himself of that opportunity, the underlying pleasand judgments should be vacated, and the People may prosecute the defendant under all countsunder both indictments, in addition to the two other alleged drug sales for which the defendantwas not indicted, but which were covered under the terms of the parties' plea agreement. In theevent that the defendant does not avail himself of the opportunity to withdraw his pleas of guiltyand the parties do not otherwise agree to some other legal disposition, the court should proceedto resentence the defendant to a lawful period of postrelease supervision on the count of criminalsale of a firearm in the third degree (see People v Dallas, 107 AD3d at 912; People vSosa-Rodriguez, 63 AD3d at 863).
Finally, to the extent that the defendant contends that he was deprived of the effectiveassistance of counsel at the resentencing proceeding, he failed to demonstrate "that counsel'srepresentation fell below an objective standard of reasonableness" (Strickland vWashington, 466 US 668, 688 [1984]; see People v Summerville, 138 AD3d 897, 899 [2016]).
In light of the foregoing, the defendant's remaining contentions are academic. Dillon, J.P.,Miller, Barros and Christopher, JJ., concur.