DEFENDANT WAS ENTITLED EITHER TO THE VACATION OF HIS GUILTY PLEA OR TO A SENTENCE WHICH CONFORMED WITH THE SENTENCE PROMISE; DEFENDANT’S 440 MOTION WAS NOT BARRED BY PROVISIONS OF CPL 440.10 (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant was entitled to either the vacation of his guilty plea or the imposition of a sentence which conformed to the plea bargain. Defendant had pled guilty to a drug possession charge and was told at the time of the plea he would not serve more than a year and a half in addition to his concurrent Massachusetts sentence. However, the Massachusetts sentence was subsequently reduced because of a cooperation agreement. Defendant’s 440 motion was not barred by CPL 440.10 (2) (c) or (2) (b):

… [D]efendant’s motion is not barred by CPL 440.10 (2) (c) inasmuch as the relevant ground for relief did not arise until several years after the deadline to file a direct appeal from the judgment had expired. Further, contrary to the court’s determination, defendant’s motion is not barred by CPL 440.10 (2) (b) inasmuch as he never filed a direct appeal from the judgment.

On the merits, it is well settled that, “[g]enerally, when a guilty plea has been induced by an unfulfilled promise either the plea must be vacated or the promise honored’ ” … . Here, the “reduction of the preexisting sentence nullified a benefit that was expressly promised and was a material inducement to the guilty plea” … , i.e., “the judge’s specific representation [that defendant’s guilty plea in New York] would thereby extend his [aggregate] incarceratory term by a year and a half only” … . People v Valerio, 2019 NY Slip Op 07192, Fourth Dept 10-3-19