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COUNTY COURT’S TELLING DEFENDANT HIS SENTENCE WOULD BE ENHANCED IF HE DID NOT COOPERATE WITH THE PROBATION DEPARTMENT DID NOT ADEQUATELY INFORM DEFENDANT HIS STATEMENT IN THE PROBATION INTERVIEW THAT HE DID NOT REMEMBER THE BURGLARY WOULD TRIGGER AN ENHANCED SENTENCE; SENTENCE VACATED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined that County Court’s telling defendant he would enhance defendant’s sentence if defendant did not cooperate with the Probation Department did not adequately inform defendant his sentence would be enhanced if he told the Probation Department he did not remember the burglary to which he entered a plea:

Prior to adjourning the matter for sentencing, County Court stated to defendant, “It’s important that you cooperate with the Probation Department . . ., because if you . . . didn’t cooperate with the presentence investigation report, then I could enhance the sentence and sentence you to more time.” County Court did not, however, expressly advise defendant (and defendant, in turn, did not agree) that he must provide truthful answers to the Probation Department, refrain from making statements that were inconsistent with his sworn statements during the plea colloquy and/or avoid any attempt to minimize his conduct in the underlying burglary … . Further, County Court summarily denied defendant’s oral motion to withdraw his plea upon this ground and, despite defendant’s request for a hearing, County Court made no further inquiry as to defendant’s allegedly inconsistent statements; rather, County Court simply concluded that defendant’s stated inability to recall the burglary at the time of his interview with the Probation Department constituted a failure to “cooperate” in the preparation of the presentence investigation report. Given the subjective nature of the court’s requirement that defendant “cooperate” with the Probation Department and the court’s corresponding lack of further inquiry, County Court erred in imposing an enhanced sentence without first affording defendant an opportunity to withdraw his plea … . People v Ackley, 2021 NY Slip Op 01293, Third Dept 3-4-21

 

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