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DEFENDANT WAS REPEATEDLY WARNED HE COULD BE SENTENCED TO 45 YEARS AFTER TRIAL WHEN, IN FACT, HIS SENTENCE WOULD BE CAPPED AT 20 YEARS; DEFENDANT WAS NOT AWARE OF THIS GROUND FOR AN ATTACK ON HIS SENTENCE AND THEREFORE DID NOT NEED TO PRESERVE THE ISSUE FOR APPEAL BY MOVING TO WITHDRAW THE PLEA; PLEA VACATED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, determined defendant’s guilty plea should be vacated because he was under the impression he was avoiding a 45 year sentence when, in fact, he could have been sentenced to a maximum of 20 years. Although defendant did not move to withdraw his plea which is usually required to preserve the issue for appeal, here the defendant had no knowledge of the ground for a motion to withdraw:

… [T]he court repeatedly told defendant that he faced a possible sentence of 45 years, but not that defendant’s sentence would ultimately be reduced to 20 years. …

The Court of Appeals … has carved out an exception to the preservation doctrine, in certain instances. “because of the ‘actual or practical unavailability of either a motion to withdraw the plea’ or a ‘motion to vacate the judgment of conviction,'” reasoning that ” ‘a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge’ ” … . …

Here, the court’s misinformation had great significance. The court repeatedly warned defendant that he could face 45 years in prison if he proceeded to trial on all three of his open burglary cases, and neither the prosecutor nor defense counsel corrected the record. Moreover, defendant, who had already had a failed allocution, did not plead guilty until just before jury selection was to begin, and after the court had repeatedly warned him that he could face as much as 45 years in jail if he proceeded to trial and was convicted. People of the State of New York v Joseph, 2020 NY Slip Op 07472, First Dept 12-10-20

 

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