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DEFENDANT HAD SERVED HIS ENTIRE SENTENCE BY THE TIME THE ASSAULT SECOND CONVICTION WAS OVERTURNED, THE IMPOSITION OF MORE PRISON TIME UPON HIS SUBSEQUENT PLEA TO THE ASSAULT SECOND CHARGE VIOLATED THE DOUBLE JEOPARDY CLAUSE, DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING TIME SERVED, BECAUSE THE ERROR AFFECTED THE VOLUNTARINESS OF DEFENDANT’S GUILTY PLEA THE WAIVER OF APPEAL DID NOT APPLY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction and set aside the sentence should have been granted. The court noted that the waiver of appeal did not apply because the alleged error affected the voluntariness of the guilty plea. At the time defendant’s assault second conviction was overturned he had completed his sentence. When he subsequently pled guilty to the assault second charge more prison time was imposed. That violated the prohibition against double jeopardy (punished twice for the same offense). Defense counsel was ineffective for not arguing defendant must be sentenced to time served:

At the time of remittal, it was clear that, more than 15 years earlier, defendant had been sentenced to seven years in prison for his conviction of assault in the second degree, which was the maximum permissible sentence for a second violent felony offender convicted of that crime … . It was also clear that his assault conviction had been overturned on appeal. These facts and circumstances alone would have alerted a reasonably competent attorney to the possibility that any subsequent sentence that included additional prison time might violate the constitutional prohibition against multiple punishments and, by extension, prompted an inquiry into the amount of time that defendant had already served in prison on his 2001 assault conviction. It is evident from the record that defense counsel did not recognize 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 had already served the maximum permissible prison term for assault in the second degree and, therefore, could be sentenced only to time served … . People v Jones, 2019 NY Slip Op 02586, Third Dept 4-4-19

 

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