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THE JUDGE’S PROVIDING ERRONEOUS INFORMATION ABOUT THE MAXIMUM SENTENCE DEFENDANT WAS FACING NEED NOT BE PRESERVED FOR APPEAL AND RENDERED THE GUILTY PLEA INVOLUNTARY (THIRD DEPT).

he Third Department, reversing defendant’s conviction by guilty plea, determined the judge’s providing erroneous information about the maximum sentence defendant was facing did not need to be preserved for appeal and rendered the guilty plea involuntary:

… County Court advised [defendant] that, if he elected to proceed to trial and was convicted of all offenses as a second felony drug offender, he faced a sentencing exposure of 36 years in prison rather than the correct, capped term of 30 years … . … [A]s the Court of Appeals recently made clear, where “the court provides the defendant with erroneous information concerning their maximum sentencing exposure that is contrary to the undisputed text of the Penal Law, fails to correct its error on the record, and the defendant has no apparent reason to question the accuracy of that information, the defendant need not preserve a challenge to the voluntariness of the guilty plea on that ground” … . * * *

Although defendant here was no stranger to the criminal justice system and received a reasonable sentencing commitment from County Court, the plea colloquy itself reflects that defendant believed that he had been overcharged and questioned whether he would be convicted if he went to trial. Defendant made clear during the plea colloquy, in fact, that he was only pleading guilty to the indictment because he would rather[*3]”get the high/low of 16/14″ than go to trial and risk “more time in state prison.” Even then, defendant remained conflicted about pleading guilty until the moment he entered his formal plea, asking County Court immediately before he did so to repeat the potential sentencing exposure he faced if he did not “want to go through all of this and [went] to trial.” … .People v Shaw, 2025 NY Slip Op 03358, Third Dept 6-5-25

Practice Point” Here the judge told defendant he was facing 36 years in prison when the actual maximum was 30. That error need not be preserved for appeal and, based on defendant’s remarks and questions at sentencing, was deemed to have rendered defendant’s guilty plea involuntary.

 

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HERE A MOTION TO RENEW AN APPEAL WAS GRANTED AND THE PRIOR APPELLATE DECISION... THE ERRONEOUS “LOSS OF CHANCE” JURY INSTRUCTION REQUIRED REVERSAL;...