| People v Hunter |
| 2019 NY Slip Op 04496 [173 AD3d 1249] |
| June 6, 2019 |
| Appellate Division, Third Department |
[*1](June 6, 2019)
| The People of the State of New York,Respondent, v Stanley Hunter, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered November 30, 2010, convicting defendant upon his plea of guilty of the crime ofmurder in the second degree.
In 2010, defendant and two codefendants were charged with various crimes following anattempted robbery during which defendant shot and killed the victim. In satisfaction of thenine-count indictment, defendant pleaded guilty to murder in the second degree in exchange for apromised prison term of 20 years to life. Following an Outley hearing, County Courtconcluded that defendant violated a condition of the plea agreement and imposed a prisonsentence of 25 years to life. Defendant appealed, arguing that the court improperly enhanced hissentence without providing him an opportunity to withdraw his plea. This Court found thecontention unpreserved for review, based on defendant's failure to object to the enhancedsentence or move to withdraw his plea, and affirmed the judgment of conviction (98 AD3d 1189[2012], lv denied 20 NY3d 1012 [2013]).
In 2018, this Court addressed defendant's motion for a writ of error coram nobis contendingthat he was denied the effective assistance of appellate counsel on his original appeal. Defendantargued that County Court improperly enhanced his sentence without providing him anopportunity to withdraw his plea and that appellate counsel should have raised the issue that trialcounsel was ineffective for failing to either object to the enhanced sentence or move to withdrawhis plea. This Court found that the issue may have merit and granted the motion, reinstating theappeal but limiting it to this specific issue.[FN*]
Trial counsel was ineffective for failing to adequately challenge County Court's imposition ofthe enhanced sentence. "A sentencing court may not impose an enhanced sentence unless it hasinformed the defendant of specific conditions that the defendant must abide by or risk suchenhancement, or give the defendant an opportunity to withdraw his or her plea before theenhanced sentence is imposed" (Peoplev Tole, 119 AD3d 982, 984 [2014] [citations omitted]; see People v Parker, 57NY2d 136, 141 [1982]; People vDenegar, 130 AD3d 1140, 1141 [2015]; People v Armstead, 52 AD3d 966, 967 [2008]). The court has anobligation to "insure that [the] defendant [is] fully aware of the adverse consequences that mightflow from [the violation of a condition of the plea agreement] prior to the imposition of" anenhanced sentence (People vMcDermott, 68 AD3d 1453, 1453-1454 [2009], citing People v Parker, 57 NY2dat 141; see People v Denegar, 130 AD3d at 1141).
During the plea colloquy, County Court had this exchange with defendant:
"COURT: I'm going to ask you to do the three following things so that I'll be able to give youthe 20-year to life sentence. By the way, if I'm unable to give you that sentence you would havethe right to withdraw your plea and proceed to trial or otherwise. Now, having said that, let mealso say . . . that, please, show up for sentencing. That's easy, right?
"DEFENDANT: Yes, sir.
"COURT: Don't get in any trouble at the jail, don't get rearrested, don't get involved withcontraband, or break the law, or anything like that in jail, you can do that?
"DEFENDANT: Yes, sir.
"COURT: Thirdly, the [P]robation [D]epartment is going to be in to see you. They are goingto do a presentence report. I ask you to be cooperative with them and honest with them andcontinue to express the remorse that you show here today because if you don't cooperate withthem, and if you are not honest with them, or if you don't continue to accept remorse andresponsibility for what you did then your plea will stand and I will be free to impose a sentenceof 25 years to life and say things to make sure that you never see parole, so, please, cooperatewith your probation officer."
County Court imposed an enhanced sentence based upon its finding that defendant hadviolated a condition of his plea agreement by being arrested on new charges prior to sentencing.Considering the court's specific warnings regarding the consequences of failing to cooperate withprobation and the lack of any such warnings regarding the other two conditions, as well as thestatement that defendant would be able to withdraw his plea if the court did not intend to imposethe agreed-upon sentence, the court did not insure that defendant was fully aware of theconsequences of being arrested prior to sentencing. Accordingly, County Court should not haveimposed an enhanced sentence without providing defendant an opportunity to withdraw his plea(see People v Rushlow, 137 AD3d1482, 1483-1484 [2016]; People v Tole, 119 AD3d at 984; People v Lewis, 98 AD3d 1186,1186-1187 [2012]).
In light of the foregoing, counsel was ineffective for failing to challenge the enhancedsentence on the ground that County Court did not insure that defendant was fully aware of theconsequences of being rearrested prior to sentencing. A successful challenge to the enhancedsentence would have resulted in County Court having to either impose the agreed-upon sentenceor provide defendant with an opportunity to withdraw his plea (see People v Rushlow,137 AD3d at 1483). There is no apparent strategic explanation for counsel not challenging theimposition of the enhanced sentence, which was the maximum sentence for murder in the seconddegree (see Penal Law § 70.00 [2] [a]; [3] [a] [i]). If the challenge weresuccessful, defendant would receive the lower, agreed-upon sentence. On the other hand, ifCounty Court still intended to impose the enhanced sentence and counsel did not believe thathaving defendant withdraw his plea and go to trial was in his best interests, then defendant couldchoose not to withdraw the plea and he would be facing the same sentence as he was prior tochallenging the enhancement. Accordingly, there does not appear to be any risk in challengingthe enhanced sentence and, therefore, no apparent strategic or other legitimate explanation forcounsel not doing so, rendering the assistance less than meaningful. Indeed, counsel had statedduring the Outley hearing that defendant would move to withdraw his plea if the courtplanned to enhance his sentence; the court stated that counsel could renew that application oncethe court had reached a final determination on the matter, but no such motion was made and noobjection was raised at sentencing.
Because counsel was ineffective for failing to preserve the propriety of the enhancedsentence by objecting or moving to withdraw the plea, we will excuse the lack of preservationand address the merits. As noted above, the record does not indicate that County Court gavedefendant valid Parker warnings or an opportunity to withdraw his plea before imposingan enhanced sentence. Therefore, we vacate the sentence and remit the matter to County Court toeither impose the agreed-upon sentence or provide defendant with the option to withdraw hisplea (see People v Rushlow, 137 AD3d at 1484; People v Tole, 119 AD3d at984).
Garry, P.J., Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the County Court of SullivanCounty for further proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.
Footnote *:We decline to address issuesnow raised by defendant that exceed the limits that our motion decision placed on this reinstatedappeal.