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THE PLEA AGREEMENT COULD NOT BE FULFILLED BECAUSE THE DEFENDANT WAS NOT ELIGIBLE FOR THE PROMISED SHOCK INCARCERATION PROGRAM; DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; ALTHOUGH THE ISSUE WAS NOT PRESERVED BY A MOTION, THE MATTER WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the plea was invalid because the plea agreement could not be fulfilled. Defendant was promised participation in the shock incarceration program, but a prior violent felony conviction rendered him ineligible. The court noted that the argument the plea was not voluntary (because the promise could not be fulfilled) was not preserved for appeal by a postallocution motion. The appeal was considered in the interest of justice:

There is no dispute that, in light of defendant’s prior violent felony conviction, he was not in fact eligible for participation in a shock incarceration program … . Nor is there any question that a judicial mandate for shock incarceration was part and parcel of defendant’s plea agreement … . “A guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … . As the promise made here cannot be honored, and given defendant’s insistence that his plea was involuntary, we deem vacatur of the plea and remittal to County Court for further proceedings to be the appropriate remedy  … . People v Regan, 2021 NY Slip Op 06007, Third Dept 11-4-21

 

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