| People v Jones |
| 2019 NY Slip Op 02586 [171 AD3d 1249] |
| April 4, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Andrew Jones, Appellant. |
Kelly L. Egan, Rensselaer, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Clark, J. Appeals (1) from a judgment of the Supreme Court (Breslin, J.), rendered May 27,2016 in Albany County, convicting defendant upon his plea of guilty of the crime of assault inthe second degree, and (2) by permission, from an order of said court, entered January 18, 2017in Albany County, which denied defendant's motion pursuant to CPL 440.10 and 440.20 tovacate the judgment of conviction and to set aside the sentence, without a hearing.
In 2001, defendant was convicted by jury verdict of assault in the second degree, as chargedin a single-count indictment, and sentenced to a prison term of seven years, followed by fiveyears of postrelease supervision. Defendant timely filed a notice of appeal from the judgment ofconviction, but, for reasons unknown to this Court, he did not perfect his appeal until June 2015.This Court ultimately decided defendant's appeal in February 2016 and, finding that CountyCourt erroneously denied defendant's Batson challenge to a prospective juror, reversedthe judgment of conviction and remitted the matter for further proceedings (136 AD3d 1153[2016], lv dismissed 27 NY3d 1000 [2016]). Upon remittal, defendant pleaded guilty toassault in the second degree and waived his right to appeal in exchange for a prison term of fiveyears, followed by five years of postrelease supervision, with such sentence to run concurrentlywith a 2003 conviction for murder in the second degree. Defendant was sentenced, as a secondviolent felony offender, in accordance with the plea agreement. Thereafter, defendant moved,pursuant to CPL 440.10 and 440.20, to vacate the judgment of conviction and set aside hissentence. Supreme Court denied that motion without a hearing, and defendant now appeals fromthe judgment of conviction and, by permission, from the denial of his CPL article 440motion.
Defendant argues that his trial counsel was ineffective for failing to recognize that, at thetime of remittal, he had already served the maximum prison sentence that could be imposed uponhim as a second violent felony offender for assault in the second degree (see Penal Law§ 70.04 [3] [c]) and, consequently, that principles of double jeopardy prohibited theimposition of any sentence that included additional prison time. Inasmuch as this claim ofineffective assistance of counsel impacts upon the voluntariness of defendant's guilty plea, itsurvives defendant's valid waiver of appeal (see People v Marshall, 66 AD3d 1115, 1116 [2009]; People v Charlotten, 44 AD3d1097, 1099 [2007]; People vBaldwin, 36 AD3d 1024, 1024 [2007]).
Turning to the merits, the Double Jeopardy Clauses of the NY and US Constitutions prohibit,among other things, the imposition of multiple punishments for the same offense (see USConst 5th Amend; NY Const, art I, § 6; North Carolina v Pearce, 395 US711, 717 [1969]; People v Gause, 19NY3d 390, 395 [2012]; People v Vasquez, 89 NY2d 521, 527 [1997], certdenied 522 US 846 [1997]). The constitutional prohibition against multiple punishmentsserves "to ensure that sentencing courts do not exceed, by the device of multiple punishments,the limits prescribed by the legislative branch of government," which holds "the substantivepower to define crimes and prescribe punishments" (Jones v Thomas, 491 US 376, 381[1989]; see generally Missouri v Hunter, 459 US 359, 366-367 [1983]; People vGonzalez, 99 NY2d 76, 82 [2002]). In keeping with that purpose, any "punishment alreadyexacted" upon a defendant who succeeded in overturning his or her conviction and wassubsequently convicted for the same offense "must be fully 'credited' " toward thesentence imposed upon the new conviction (North Carolina v Pearce, 395 US at 718-720;see Jones v Thomas, 491 US at 382; United States v Carpenter, 320 F3d 334, 345n 10 [2003]; Matter of Ortiz vAnnucci, 143 AD3d 1209, 1211 [2016], appeal dismissed 28 NY3d 1167[2017]).
At the time of remittal, it was clear that, more than 15 years earlier, defendant had beensentenced to seven years in prison for his conviction of assault in the second degree, which wasthe maximum permissible sentence for a second violent felony offender convicted of that crime(see Penal Law § 70.04 [3] [c]). It was also clear that his assault convictionhad been overturned on appeal. These facts and circumstances alone would have alerted areasonably competent attorney to the possibility that any subsequent sentence that includedadditional prison time might violate the constitutional prohibition against multiple punishmentsand, by extension, prompted an inquiry into the amount of time that defendant had already servedin prison on his 2001 assault conviction. It is evident from the record that defense counsel did notrecognize or investigate the obvious potential double jeopardy concern at the time of remittal for,if she had, she would have determined—as the People concede—that defendant hadalready served the maximum permissible prison term for assault in the second degree and,therefore, could be sentenced only to time served (see People v Henriques, 35 AD3d 502, 503-504 [2006]; seegenerally Jones v Thomas, 491 US at 382; North Carolina v Pearce, 395 US at718-719). Significantly, the information needed to reach such a conclusion was readily availablein defendant's motion to reargue this Court's 2016 decision of his prior appeal, in whichdefendant demonstrated that, in the 15 years since his 2001 assault conviction, he had "served hisfull sentence." In our view, defense counsel's failure to recognize and advise defendant thatdouble jeopardy principles prohibited the imposition of any additional prison time on the pendingassault charge, as was included in the negotiated plea agreement and ultimately imposed atsentencing, constituted ineffective assistance of counsel (see Jackson v Leonardo, 162F3d 81, 85-86 [1998]; compare Palmer v United States, 66 Fed Appx 224, 225-226[2003]). Given the reasonable probability that, but for defense counsel's errors, defendant wouldnot have pleaded guilty (see generallyPeople v Ghingoree, 166 AD3d 799, 800-801 [2018]; People v Charlotten, 51 AD3d1063, 1064 [2008]), defendant's guilty plea must be vacated and the matter remitted forfurther proceedings.
Defendant's remaining arguments on his appeal from the judgment of conviction, as well ashis appeal from the order denying his CPL article 440 motion, have been rendered academic byour decision.
Egan Jr., J.P., Mulvey, Devine and Aarons, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision. Ordered that the appeal from the order is dismissed, asacademic.