| People v Mudd |
| 2019 NY Slip Op 01265 [169 AD3d 1166] |
| February 21, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Nikolaus E. Mudd, Appellant. |
Rebecca L. Fox, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Clinton County (McGill, J.), renderedJuly 29, 2016, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlledsubstance in the third degree (two counts) and criminal possession of a controlled substance in the thirddegree (two counts).
In February 2016, defendant was arraigned on an indictment charging him with criminal sale of acontrolled substance in the third degree (two counts) and criminal possession of a controlled substancein the third degree (two counts) stemming from the sale of heroin on two separate occasions in July2015. Defendant subsequently appeared in May 2016 and the People placed on the record an offerthat had been made to defendant, which included a prison sentence of six years with three years ofpostrelease supervision (hereinafter PRS). Defendant then appeared, approximately two weeks later,and the same plea offer was extended. Defendant, however, did not accept the People's offer, and itwas withdrawn on the record. Subsequently, defendant, who was appearing for a suppression hearing,pleaded guilty to the indictment, with a promise from County Court that it "would commit itself to notsentencing [him] to more than the offer that was made by the [People]." Prior to the conclusion of theplea proceeding, the court informed defendant that, if he committed any crimes prior to sentencing, thecourt would not be bound by the "six-year cap." At sentencing, defendant admitted his predicate felonyconviction and the court imposed concurrent prison terms of six years on each count, as a secondfelony offender, to be followed by three years of PRS. Defendant appeals, and we reverse.
We agree with defendant that his guilty plea was not knowing, voluntary and intelligent becauseCounty Court failed to advise him that the sentence would include PRS. "To meet due processrequirements, a defendant 'must be aware of the [PRS] component of [a] sentence in order toknowingly, voluntarily and intelligently choose among alternative courses of action' " (People v Turner, 24 NY3d 254, 258[2014], quoting People v Catu, 4 NY3d242, 244-245 [2005]). County Court's statement that defendant would not be sentenced "to morethan the offer that was made by the [People]," without detailing the terms of that offer, was not sufficientto advise defendant that his sentence would include PRS (see People v Louree, 8 NY3d 541, 545 [2007]; People v Wilson, 164 AD3d 1012,1021 [2018]). Likewise, we find that the confusing statement made by the People after defendantpleaded guilty—that "the [c]ourt has agreed to a cap of six years, [but defendant] couldpotentially face up to [24] years in prison with three years' [PRS]"—could lead to the conclusionthat PRS would not be imposed under the "six-year cap" but, rather, that PRS would be imposed onlyif the maximum sentence were to be imposed (see People v James, 160 AD3d 984, 985 [2018]).
Under the facts presented here, preservation of defendant's claim was not required as defendanthad no practical ability to object to the imposition of PRS (see People v Wilson, 164 AD3d at1021; People v Bolivar, 118 AD3d91, 93 [2014]; People v James, 160 AD3d at 985; cf. People v Boyd, 12 NY3d 390, 393 [2009]; compare People v Pendelton, 81 AD3d1037, 1038 [2011], lv denied 16 NY3d 898 [2011]). Further, County Court's failure toadequately advise defendant that he would be subject to a period of PRS prior to accepting his plea, orat any other time prior to imposing his sentence, combined with the People's confusing statementregarding the sentencing, requires reversal of defendant's conviction (see People v Louree, 8NY3d at 545-546; People v Wilson, 164 AD3d at 1021). In light of this determination,defendant's remaining contentions are rendered academic.
Egan Jr., J.P., Lynch, Aarons and Rumsey, JJ., concur. Ordered that the judgment is reversed, onthe law, and matter remitted to the County Court of Clinton County for further proceedings notinconsistent with this Court's decision.