People v Smith

2018 NY Slip Op 03025 [160 AD3d 1475]

April 27, 2018

Appellate Division, Fourth Department

As corrected through Wednesday, May 30, 2018

[*1]

The People of the State of New York,Respondent, v Ruben R. Smith, Appellant.

Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.

Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.

Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), renderedApril 23, 2015. The judgment convicted defendant, upon his plea of guilty, of falsifying businessrecords in the first degree.

It is hereby ordered that the judgment so appealed from is unanimously reversed as a matterof discretion in the interest of justice and on the law, the plea is vacated, and the matter isremitted to Monroe County Court for further proceedings on the indictment.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty offalsifying business records in the first degree (Penal Law § 175.10). Defendantcontends that his plea was involuntary because it was induced by County Court's promise,subsequently unfulfilled, that he would be admitted into a shock incarceration program. To theextent that defendant was required to preserve that contention for our review but failed to do so(see People v Williams, 27 NY3d212, 224 [2016]), we exercise our power to review it as a matter of discretion in the interestof justice (see CPL 470.15 [3] [c]).

The record establishes that the court believed it had the authority to grant defendantadmission into a shock incarceration program and that it made such admission a condition ofdefendant's guilty plea. At sentencing, the court acted in accordance with its perceived authorityand the plea agreement by imposing a term of incarceration of 11/2 to 3 years "withshock camp." There is no dispute that defendant was not admitted into a shock incarcerationprogram.

We agree with defendant that the court had no authority to assure him of admission into ashock incarceration program or to impose such as part of the sentence (see People ex rel. Dickerson v Unger,62 AD3d 1262, 1263 [4th Dept 2009], lv denied 12 NY3d 716 [2009]). Inasmuch asthe record establishes that defendant, in accepting the plea, relied on a promise of the court thatcould not, as a matter of law, be honored, defendant is entitled to vacatur of his guilty plea (see People v Muhammad, 132 AD3d1068, 1069 [3d Dept 2015]). Present—Smith, J.P., Carni, DeJoseph, NeMoyer andTroutman, JJ.