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INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY.

The Fourth Department determined the trial testimony rendered a count of the indictment duplicitous and dismissed it:

We agree with defendant that the third count of the indictment, charging defendant with engaging in anal sexual contact with the complainant by forcible compulsion, was rendered duplicitous by the complainant’s testimony … . The complainant testified that the acts of anal sexual contact occurred “more than once” over the course of a two-hour incident, and, contrary to the People’s contention, such acts did not constitute a continuous offense … , but rather were separate and distinct offenses … . People v Cox, 2016 NY Slip Op 08661, 4th Dept 12-23-16

CRIMINAL LAW (INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)/INDICTMENTS (INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)/EVIDENCE (INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)/DUPLICITOUS (INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)/SEXUAL ACT (CRIMINAL LAW, (INDICTMENT COUNT CHARGING CRIMINAL SEXUAL ACT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)

HEIGHT DIFFERENTIAL DEEMED DE MINIMUS AND NOT ACTIONABLE UNDER LABOR LAW 240(1), PIPE WHICH FELL WAS ONE FOOT ABOVE PLAINTIFF’S HEAD AND WITHIN HIS REACH.

The Fourth Department, over a two-justice dissent, determined plaintiff’s Labor Law 240(1) cause of action was properly dismissed. Plaintiff was working in the basement when a pipe, which was one foot above him and was within his reach, fell and injured him. The majority found the height differential “de minimus” and therefore not actionable:

“Liability may . . . be imposed under [Labor Law § 240 (1)] only where the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” … . Although there is conflicting deposition testimony concerning the exact elevation of the pipe, it is undisputed that the pipe was, at most, one foot above plaintiff’s head, and that the pipe was always within his reach. We therefore conclude that plaintiff’s injury did not fall within the scope of section 240 (1) inasmuch as “any height differential between plaintiff and the [pipe] that fell on him was de minimis” … . Kuhn v Giovanniello, 2016 NY Slip Op 08633, 4th Dept 12-23-16

LABOR LAW-CONSTRUCTION LAW (HEIGHT DIFFERENTIAL DEEMED DE MINIMUS AND NOT ACTIONABLE UNDER LABOR LAW 240(1), PIPE WHICH FELL WAS ONE FOOT ABOVE PLAINTIFF’S HEAD AND WITHIN HIS REACH)/DE MINIMUS (LABOR LAW-CONSTRUCTION LAW (HEIGHT DIFFERENTIAL DEEMED DE MINIMUS AND NOT ACTIONABLE UNDER LABOR LAW 240(1), PIPE WHICH FELL WAS ONE FOOT ABOVE PLAINTIFF’S HEAD AND WITHIN HIS REACH)/HEIGHT DIFFERENTIAL (LABOR LAW-CONSTRUCTION LAW (HEIGHT DIFFERENTIAL DEEMED DE MINIMUS AND NOT ACTIONABLE UNDER LABOR LAW 240(1), PIPE WHICH FELL WAS ONE FOOT ABOVE PLAINTIFF’S HEAD AND WITHIN HIS REACH)

FAMILY COURT SHOULD HAVE CONSIDERED PATERNITY BY ESTOPPEL BEFORE ORDERING TEST FOR BIOLOGICAL PATERNITY.

The Fourth Department, reversing Family Court and ordering further proceedings before a different judge, reiterated that a court should consider paternity by estoppel before ordering a test for biological parternity. Here, Gerald, the acknowledged father of the child and the custodial parent of the child, was not a named party in the proceedings (a paternity petition brought by the mother naming another party, Shane, as the father). Shane appeared and stated he wanted nothing to do with child. Yet the court ordered a paternity test without making Gerald a party and without notifying him:

“Family Court should consider paternity by estoppel before it decides whether to test for biological paternity” … . That did not occur here because Gerald was not a named party in the paternity proceeding and did not otherwise appear when the court ordered Shane to submit to a genetic marker test, so he did not have the opportunity to raise the doctrine of estoppel. The court should have joined Gerald in that proceeding or otherwise notified him before it ordered the test … . After all, Gerald was not only the acknowledged father of the child, but was the custodial parent of the child, and the court was well aware of those facts inasmuch as it had issued the custody orders. The court made it clear in its decision, however, that even if Gerald had made a timely objection and raised the defense earlier, the court nevertheless would have ordered the test because the child was young and “the truth is important.” That is contrary to both the plain language of the statute and statements of law by the Court of Appeals. Matter of Jennifer L. v Gerald S., 2016 NY Slip Op 08730, 4th Dept 12-23-16

FAMILY LAW (FAMILY COURT SHOULD HAVE CONSIDERED PATERNITY BY ESTOPPEL BEFORE ORDERING TEST FOR BIOLOGICAL PATERNITY)/PATERNITY (FAMILY COURT SHOULD HAVE CONSIDERED PATERNITY BY ESTOPPEL BEFORE ORDERING TEST FOR BIOLOGICAL PATERNITY)

COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY.

The Fourth Department determined a house purchased by the husband prior to marriage was his separate property, despite the fact it was used a the marital residence and proceeds from the sale were used to purchase a marital residence. The appreciation in the value of the house, however, was marital property:

It was undisputed that the Seneca Hill Property was purchased by defendant prior to the marriage, and we conclude that it was not transmuted into marital property when the parties used it as the marital residence for approximately two years, or by virtue of defendant having used some of the sale proceeds therefrom to assist in funding the purchase of a new marital residence … . Defendant was therefore entitled to a credit for his separate property contributions to the marital estate … . We further conclude, however, that the appreciated value of the Seneca Hill Property that the court determined to be attributable to the contributions of plaintiff should have been classified as marital property … . Hart v Hart, 2016 NY Slip Op 08692, 4th Dept 12-23-16

FAMILY LAW (MARITAL PROPERTY, COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)/EQUITABLE DISTRIBUTION (MARITAL PROPERTY, COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)/MARITAL PROPERTY (COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)/SEPARATE PROPERTY (EQUITABLE DISTRIBUTION, COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)/APPRECIATION IN VALUE (EQUITABLE DISTRIBUTION, COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)

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DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL.

The Fourth Department, reversing defendant’s convictions for criminal possession of a weapon, determined: (1) defendant was deprived of her right to present a defense when the court precluded questions that could reveal the complainant’s motive to lie; (2) prosecutorial misconduct warranted reversal (considered in the interest of justice; (3) allowing the prosecutor to cross-examine defendant about her failure to turn herself in warranted reversal (considered in the interest of justice); and (4) allowing a witness to refer to defendant as a drug dealer warranted reversal (considered in the interest of justice). With respect to the right to present a defense, the court wrote:

… [W]e conclude that defendant was improperly precluded from establishing that the complainant was engaged in a criminal enterprise and regularly purchased crack cocaine—therefore having good reason to possess a gun as compared to defendant. More importantly, that evidence, if credited by the jury, would demonstrate that the complainant had every reason to fabricate the story that the gun belonged to defendant and not her … . In addition, we conclude that the proffered evidence was admissible to complete the narrative of events, i.e., to provide background information as to how and why the complainant allegedly confronted defendant, and to explain the aggressive nature of the confrontation … . Applying those principles here, we conclude that defendant was denied her constitutional right to present a defense … . People v Horton, 2016 NY Slip Op 08727, 4th Dept 12-23-16

CRIMINAL LAW (DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/DEFENSE, RIGHT TO PRESENT (CRIMINAL LAW, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/PROSECUTORIAL MISCONDUCT (DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/EVIDENCE (CRIMINAL LAW, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)

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FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL.

The Fourth Department, reversing defendant’s conviction, determined the court’s failure to hold a Sandoval hearing concerning the admissibility of prior uncharged crimes or bad acts as impeachment evidence required reversal. Defendant was in fact cross-examined about prior bad acts strikingly similar to the charges against him. In addition, the trial court erred in allowing testimony of prior consistent statements by the complaining witness, i.e., “bolstering:”

The Criminal Procedure Law provides that, “[u]pon a request by a defendant, the prosecutor shall notify the defendant of all specific instances of a defendant’s prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial for purposes of impeaching the credibility of the defendant” (CPL 240.43). Here, however, the prosecutor failed “to advise defendant before trial that he would be questioned on uncharged acts if he testified[,] and no pretrial inquiry or determination was made by the court . . . Because the court’s failure to conduct a proper pretrial inquiry may have affected defendant’s decision to testify at trial, the error cannot be deemed harmless” … . …

“The term bolstering’ is used to describe the presentation in evidence of a prior consistent statement—that is, a statement that a testifying witness has previously made out of court that is in substance the same as his or her in-court testimony” … . Although “[p]rior consistent statements will often be less prejudicial to the opposing party than other forms of hearsay, since by definition the maker of the statement has said the same thing in court that he said out of it” … , the Court of Appeals has warned that “the admission of prior consistent statements may, by simple force of repetition, give to a [factfinder] an exaggerated idea of the probative force of a party’s case” … . Contrary to the People’s sole contention, “[i]n light of the importance of the witnesses’ credibility in this case . . . , we cannot conclude that the court’s error is harmless” … . People v Memon, 2016 NY Slip Op 08653, 4th Dept 12-23-16

 

CRIMINAL LAW (FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/SANDOVAL HEARING (FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/PRIOR CRIMES AND BAD ACTS (FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/PRIOR CONSISTENT STATEMENTS (CRIMINAL LAW, BOLSTERING, ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/HEARSAY (CRIMINAL LAW, BOLSTERING, ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, BOLSTERING, ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/BOLSTERING (CRIMINAL LAW, ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)

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PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED.

The Fourth Department, reversing defendant’s conviction, determined the for cause challenge to a juror whose son is married to the district attorneys daughter should have been granted. The court further determined that a defense witness’s testimony that the victim said she didn’t “think [defendant] did this” should have been allowed:

… [T]he prospective juror should have been excused from service for cause on the ground that he bears a “relationship to [the District Attorney] of such nature that it [was] likely to preclude him from rendering an impartial verdict” … . …

… [T]he court erred in excluding testimony from a defense witness that the victim had said that she did not “think [defendant] did this,” meaning that defendant did not commit the alleged crime. We conclude that, on cross-examination of the victim, defense counsel had laid an adequate foundation for the admission of that prior inconsistent statement by eliciting testimony that the victim had never discussed the matter with the defense witness and had never told the defense witness that the alleged occurrence “between [her] and [defendant] might not have happened” … . People v Collins, 2016 NY Slip Op 08645, 4th Dept 12-23-16

 

CRIMINAL LAW (PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/JURORS (CRIMINAL LAW, PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/EVIDENCE  (CRIMINAL LAW, PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/PRIOR INCONSISTENT STATEMENT (CRIMINAL LAW, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/HEARSAY (CRIMINAL LAW, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)

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ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL.

Although deemed harmless error, the Fourth Department determined defendant was denied his right to counsel when the court permitted him to decide whether to request a jury charge on a lesser included offense (despite defense counsel advice that he should not):

“It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case’ such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal’ “… . On the other hand, defense counsel has ultimate decision making authority over matters of strategy and trial tactics, such as whether to seek a jury charge on a lesser included offense … . Here, the court “made plain that [it] would be guided solely by defendant’s choice in the matter, despite the defense attorney’s clearly stated views and advice to the contrary,” and thus the court “denied [defendant] the expert judgment of counsel to which the Sixth Amendment entitles him” … . People v Henley, 2016 NY Slip Op 08729, 4th Dept 12-23-16

CRIMINAL LAW (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/ATTORNEYS (CRIMINAL LAW, ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/RIGHT TO COUNSEL (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/LESSER INCLUDED OFFENSES (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/JURY INSTRUCTIONS (CRIMINAL LAW, ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)

JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED.

The Fourth Department reversed defendant’s conviction because a juror who expressed doubt she could be fair because of her close ties to law enforcement never stated she could put aside her bias toward police officers:

Although the prospective juror responded affirmatively to the court’s question whether she could base her decision in the case on what she heard and saw in the courtroom and the general question whether she could be fair and impartial … , she did not provide an “unequivocal assurance that . . . [she could] set aside [her] bias” toward police officers who would testify at the trial … . People v Griffin, 2016 NY Slip Op 08701, 4th Dept 12-23-16

CRIMINAL LAW (JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED)/JURORS (CRIMINAL LAW,  (JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED)/FOR CAUSE CHALLENGE (CRIMINAL LAW, JURORS, JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED)

FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA.

The Fourth Department granted defendant’s motion to withdraw his guilty plea based upon the sentencing court’s failure to completely explain the possible sentences and the discrepancy between the written plea agreement and the court’s oral explanation. The Fourth Department further found that the corrections made to the plea agreement one week after the guilty did not cure the problem. Defendant was not afforded the opportunity to withdraw his plea:

Here, although the court during defendant’s arraignment articulated the terms of a plea offer that included the alternative sentences defendant would receive if he was or was not successful in the Judicial Diversion Program, the court did not state those alternative sentences on the record during the plea colloquy. Specifically, although the court stated during the plea colloquy that defendant would receive a “cap of felony probation if successful[,]” the court did not articulate the sentence that defendant would receive if he was unsuccessful.

Furthermore, the Judicial Diversion Program Contract (Contract) signed by defendant on the date he pleaded guilty contradicts the terms of the plea agreement set forth in the transcript of defendant’s arraignment. …

The Contract was amended and re-signed by defendant one week after defendant’s guilty plea was taken, and the Court of Appeals has made clear that the court must inform the defendant of the direct consequences of a plea “[p]rior to accepting a guilty plea”… . People v Streber, 2016 NY Slip Op 08683, 4th Dept 12-23-16

CRIMINAL LAW (FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA)/GUILTY PLEA, MOTION TO WITHDRAW (FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA)/SENTENCING (FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA)

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