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Appeal Waiver Invalid/Court Erroneously Told Defendant His Request for a Hearing on the Persistent Violent Felony Offender Tolling Calculations Violated the Plea Agreement—Matter Remitted for a Hearing

The Fourth Department determined defendant’s waiver of appeal was invalid and defendant was entitled to a hearing on the time-calculations associated with the “persistent violent felony offender” status.  The ten-year period between the current felony and the prior felony is tolled by any periods of incarceration.  Defendant objected to the tolling calculations made by County Court. County Court effectively coerced defendant to agree to its tolling calculations by erroneously telling defendant his request for a hearing violated the plea agreement:

…[T]he waiver of the right to appeal is invalid inasmuch as there is no indication in the record that defendant understood that the waiver of the right to appeal was separate and distinct from those rights automatically forfeited upon a plea of guilty … . We further agree with defendant that this case should be remitted for a hearing on the issue whether he is a persistent violent felony offender. A persistent violent felony offender is one who is convicted of a violent felony offense after having previously been subjected to two or more predicate violent felony convictions (see § 70.08 [1] [a]). The sentence upon the predicate violent felony convictions “must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted” (§ 70.04 [1] [b] [iv]). However, “[i]n calculating the ten year period . . . , any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration” (§ 70.04 [1] [b] [v]).

Here, defendant admitted that he was convicted of two prior violent felonies, but objected to the tolling periods that were computed by County Court pursuant to Penal Law § 70.04 (1) (b) (v) and requested a hearing. After some discussion with the court, defendant conceded that the court’s computations were correct, essentially waiving the necessity for a hearing. …[H]is waiver of the hearing was not effective because it was the product of impermissible coercion by the court. The court indicated that it could consider defendant’s request for a hearing to be a violation of the plea agreement, but that was not accurate. “While [the court] did advise defendant during the plea hearing that he was going to be sentenced as a [persistent violent] felony offender, it never specifically instructed him that admitting such [persistent violent] felony offender status was a condition of the plea agreement and that his failure to do so would result in a more severe sentence” … . People v Vanhooser, 2015 NY Slip Op 02640, 4th Dept 3-27-15

 

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Misinformation from Defense Counsel, Prosecutor and Judge Re: Defendant’s Eligibility for Shock Incarceration Warranted Vacation of Guilty Plea In Spite of Appeal Waiver/Overnight Guest Has Standing to Contest Search of Residence

The Third Department, over a dissent, determined that misinformation from the judge, prosecutor and defense counsel about defendant’s eligibility for the shock incarceration program justified the vacation his guilty plea, despite an appeal waiver. In addition, the court determined defendant was entitled to a hearing on whether he had standing to contest the search of another’s mobile home.  The owner of the mobile home (Orrego) had supplied an affidavit stating defendant was an overnight guest, a status the provided standing to contest the search:

Given the mistake by all involved in the plea proceeding, and counsel’s failure to provide meaningful representation on this issue, we agree with defendant’s contention that his motion to withdraw his guilty plea should have been granted. * * *

… [A] trial court is not obligated to conduct a suppression hearing “unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure” … . Pertinent here, “an overnight guest has an expectation of privacy in the host’s home” and, thus, standing to contest a search of that home … . In our view, the facts set forth in the Orrego affidavit necessitated, at a minimum, that a hearing be held to determine whether defendant had standing to contest the search… . People v Wiggins, 2015 NY Slip Op 02517, 3rd Dept 3-26-15

 

Failure to Inform Defendant of the Period of Postrelease Supervision Required Reversal in the Absence of an Objection

The Fourth Department determined the defendant’s conviction must be reversed because he was not informed of the period of postrelease supervision (PRS) at the time of the plea, and he could not be expected to object because he was not informed of the PRS until the end of the sentencing hearing:

…[D]efendant was not required to preserve for our review his challenge to the imposition of PRS under these circumstances. “A defendant cannot be expected to object to a constitutional deprivation of which [he] is unaware . . . [W]here the defendant was only notified of the PRS term at the end of the sentencing hearing, the defendant can hardly be expected to move to withdraw [the] plea on a ground of which [he or she] has no knowledge’ . . . And, in that circumstance, the failure to seek to withdraw the plea or to vacate the judgment does not preclude appellate review of the due process claim” … . Furthermore, “[b]ecause a defendant pleading guilty to a determinate sentence must be aware of the [PRS] component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction” (People v Catu, 4 NY3d 242, 245). “[T]he record does not make clear, as required by Catu, that at the time defendant took his plea, he was aware that the terms of the court’s promised sentence included a period of PRS” because only the term of incarceration of 20 years was stated on the record … . While a term of PRS was mentioned earlier in the plea negotiations, it is undisputed that there was no mention of PRS at the plea proceeding and, based on our review of the record, we conclude that defendant was not “advised of what the sentence would be, including its PRS term, at the outset of the sentencing proceeding” … . People v Rives, 2015 NY Slip Op 02316, 4th Dept 3-20-15

 

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Appeal Waiver Did Not Encompass Youthful Offender Status/Defendant Should Have Been Adjudicated a Youthful Offender

The Fourth Department determined the defendant did not waive his right to appeal the court’s failure to adjudicate him a youthful offender and further determined defendant should be so adjudicated:

… [T]he waiver [of appeal] does not encompass defendant’s contention regarding the denial of his request for youthful offender status, inasmuch as “[n]o mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy” … .

We agree with defendant that he should have been afforded youthful offender status. Defendant was 16 years old at the time of the offense and committed the offense when he and his two friends were walking to a park, saw a vehicle with the keys in the ignition, and wondered what it would be like to steal the vehicle. Defendant expressed remorse for his actions, which we conclude were the actions of an impulsive youth rather than a hardened criminal (see People v Drayton, 39 NY2d 580, 584, rearg denied 39 NY2d 1058). Thus, under the circumstances, we modify the judgment as a matter of discretion in the interest of justice by adjudicating defendant a youthful offender … . People v Angel T.C., 2015 NY Slip Op 02296, 4th Dept 3-20-15

 

Actus Reus for Burglary and Murder Not the Same—Consecutive Sentences Valid

The Fourth Department, over a two-justice dissent, determined the defendant was properly sentenced to consecutive terms for burglary and murder.  The defendant broke into the victim’s home, dragged her downstairs and murdered her.  The court held that the actus reus for the burglary was completed before the murder:

Defendant was convicted of burglary for unlawfully entering the victim’s dwelling, with the aggravating factors of causing physical injury to the victim (§ 140.30 [2]), and using or threatening the immediate use of a dangerous instrument (§ 140.30 [3]), i.e., a butcher knife. Defendant was charged with intentionally causing the victim’s death by repeatedly stabbing her with a butcher knife. It is well established that, in considering whether sentences must run concurrently under Penal Law § 70.25 (2), “the court must determine whether the [actus reus] element is, by definition, the same for both offenses (under the first prong of the statute), or if the [actus reus] for one offense is, by definition, a material element of the second offense (under the second prong)” … . “[W]hen the actus reus is a single inseparable act that violates more than one statute, single punishment must be imposed” … . Although the actus reus elements of the burglary counts and the murder count overlap under the facts presented here, we nevertheless conclude that the People “establish[ed] the legality of consecutive sentencing by showing that the acts or omissions’ committed by defendant were separate and distinct acts” … . The evidence established that, after defendant entered the apartment through a window that he smashed with a cinder block, he dragged the victim from her bed and down the stairs to the living room, where he killed her. People v Brahney, 2015 NY Slip Op 02227, 4th Dept 3-20-15

 

 

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Denial of Guilt to Department of Probation (DOP) Was Not a Violation of a Condition that Defendant Cooperate With the DOP

The Second Department determined defendant’s denial of guilt to the Department of Probation (DOP) prior to sentencing was not a violation of a condition that he cooperate with the DOP.  The sentencing court therefore was not justified in imposing an enhanced sentence:

As a condition of the court’s promised sentence, the defendant agreed (1) to cooperate with the Department of Probation (hereinafter the DOP), (2) to appear on any scheduled court dates, and (3) to remain arrest free. The defendant appeared for his interview with the DOP and answered all of the questions asked, but in doing so, he also denied his guilt. However, he did not express any intention to withdraw his plea of guilty. At sentencing, the defendant contended that he did not deny his guilt to the DOP. Nonetheless, the court found that the defendant violated the “cooperation” condition by lying to the DOP. The court then imposed an enhanced sentence without first giving the defendant an opportunity to ask to withdraw his plea of guilty.

Although the violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence …, here, the defendant’s denial of his guilt to the DOP was not a violation of the condition that he cooperate with the DOP … . While a court is free to impose a condition requiring a defendant not to deny his or her guilt when interviewed by the DOP, the Supreme Court in the instant matter did not impose such a condition … . Accordingly, it erred in imposing an enhanced sentence based on its conclusion that the defendant violated a condition of the plea of guilty… . People v Pianaforte, 2015 NY Slip Op 01969, 2nd Dept 3-11-15

Failure to Include Restitution in Plea Agreement Required that the Sentencing Court Give the Defendant the Opportunity to Withdraw Her Plea Before Including Restitution in the Sentence

The Second Department determined County Court erred when it, in the absence of a prior agreement, imposed restitution as part of defendant’s sentence without giving the defendant the opportunity to withdraw her plea:

Although a court is free to reserve the right to order restitution as part of a plea agreement, the County Court did not do so here. Instead, at the very end of the sentencing proceeding, after imposing the agreed-upon terms, the court briefly turned to other matters prior to stating that it was also signing restitution judgment orders.

The defendant contends, among other things, that, before adding restitution to the sentence, the County Court should first have given her the option to withdraw her plea of guilty or to accept a sentence including restitution. Preliminarily, we note that, in light of the fact that the court did not give the defendant a sufficient opportunity to withdraw her plea of guilty before imposing restitution, the defendant’s claim is not subject to the preservation requirement … . Moreover, we agree with the defendant that the County Court erred … . People v Molinaro, 2015 NY Slip Op 01820, 2nd Dept 3-4-15

 

DLRA Provision Terminating Sentences After Three Years of Unrevoked Parole Did Not Apply to Non-Drug Related Offense by “Merger”

The Second Department, in a full-fledged opinion by Justice Rivera, determined that the provision of the Drug Law Reform Act (DLRA) [Executive Law former 259-j (3-a)] which allowed the termination of sentences for enumerated drug crimes after three years of unrevoked parole did not apply (under a merger theory) to a non-drug conspiracy offense where the maximum sentence for the conspiracy had not expired at the time the three-year-unrevoked-parole mark for the drug offenses had been reached:

The application of Executive Law former § 259-j(3-a) to this petitioner did not squarely fit within the express purpose of the 2004 DLRA. The 2004 DLRA was intended to grant specific relief to a clearly identified and circumscribed class, namely, “low level non-violent drug offenders” … . A “manager of a drug ring” cannot be deemed to be the low level offender contemplated by the statute. Further, it is unreasonable to perceive someone convicted of conspiracy to murder as “nonviolent.”

Notwithstanding the foregoing, the petitioner seeks more than the benefit heretofore conferred upon him by the 2004 DLRA and Executive Law former § 259-j(3-a). He seeks, in effect, to bootstrap the sentence imposed on the conspiracy conviction to the sentences imposed on the drug-related convictions in an attempt to discharge the remaining term thereof. However, this attempt must fail for the following reasons.

First, Executive Law former § 259-j(3-a) applies only to the specific drug-related felony offenses set forth in articles 220 and 221 of the Penal Law (see Correction Law § 205[4]). That statute cannot be reasonably construed to terminate the petitioner’s sentence on the conspiracy conviction, a non-drug-related conviction. The outcome sought by the petitioner is contrary to established precedent. Courts applying the DLRA are “not given the discretion to fashion new sentences or add terms of imprisonment, but are constrained to make an existing sentence determinate in the manner dictated by the DLRA” … .

Second, we disagree with the petitioner’s reading of Penal Law § 70.30(1) … . * * * The express language of Penal Law § 70.30(1) states that the maximum terms shall “be satisfied by discharge of the term which has the longest unexpired time to run.” … [A]t the time that [petitioner] became eligible for relief under Executive Law former § 259-j(3-a), none of the terms had expired or been discharged. The application of Executive Law former § 259-j(3-a) operated to effectively shorten the maximum term of his drug-related sentences (i.e., life) to the approximately 16 years that the petitioner served. Thus, upon the application of the early-termination provision under Executive Law former § 259-j(3-a), the maximum term of his sentence on the conspiracy conviction, which was 25 years, had the longest unexpired time to run (see Penal Law § 70.30[1][a]). People ex rel. Baez v Superintendent, Queensboro Corr. Facility, 2015 NY Slip Op 01827, 2nd Dept 3-4-15

 

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Under the Facts, the Judge’s Failure to Mention the Imposition of Post-Release Supervision as Part of the Sentence at the Time of the Plea Was an Error that Must Be Preserved by Objection (No Objection Made)

The Court of Appeals, over a dissent, determined that defendant, under the facts, was precluded from raising the judge’s failure to inform defendant at the time of defendant’s plea that post-release supervision (PRS) would be part of defendant’s sentence because the error was not preserved by objection.  Here defendant and/or defendant’s counsel had been informed of the imposition of PRS both before and after the plea:

In People v Catu [4 NY3d 242], this Court held that “the trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” … . A court is not required to engage in any particular litany when allocuting a defendant, but the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant … . We found that “[p]ostrelease supervision is significant” and that a defendant “must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntary and intelligently choose among alternative courses of action” … .

Defendant claims that his plea was not knowing, voluntary and intelligent under Catu because County Court failed to reiterate the term of PRS during the plea colloquy. We hold that, under the circumstances of this case, defendant was required to preserve his claim.

Defendant and his attorney had three opportunities to object to the imposition of PRS: at the initial scheduled sentencing July 15, at his sentencing on July 28, and at the appearance on August 17. Neither defendant nor defense counsel expressed any objection to the imposition of PRS. Because defendant had ample opportunity to raise an objection to the PRS component prior to and during these proceedings, defendant was required to preserve his claim … . People v Crowder, 2015 NY Sip Op 01481, CtApp 2-17-15

 

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Department of Social Services (DSS) Is Not a “Victim” under the Penal Law—Defendant Can Not Be Ordered to Pay Restitution to DSS for Care of Child-Victim of Defendant’s Offense

The Fourth Department determined the Department of Social Services (DSS) was not a “victim” within the meaning of Penal Law 60.27 and therefore the defendant could not be ordered to pay restitution to the DSS for expenses incurred caring for the child-victim of defendant's crime:

It is well established that restitution may be required for expenses that “were not voluntarily incurred, but stem from legal obligations that are directly and causally related to the crime” … . Here, however, the foster care expenses are the result of the placement of the victim in the care and custody of DSS pursuant to a proceeding in Family Court (see Family Ct Act § 1055 [1]), and thus DSS is performing its statutory duty pursuant to Social Services Law § 398 (2) (b). We note that the Legislature has specifically provided that certain governmental agencies and entities are entitled to restitution when performing their statutory duties (see Penal Law § 60.27 [9], [10], [13]). Section 60.27 (9), for example, was enacted to permit restitution to police agencies for unrecovered funds used in undercover drug purchases following the decision in People v Rowe (152 AD2d 907, 909, affd 75 NY2d 948, 949). In Rowe, we determined that, absent legislative intent to include a city police department as a “victim,” such funds could not be recovered by means of a court order of restitution. Similarly, here, in the absence of legislative intent that DSS is a “victim” pursuant to Penal Law § 60.27, we decline to impose an obligation on defendant to pay restitution for the expenditure of public funds for providing foster care for the victim. People v Johnson, 2015 NY Slip Op 01107, 4th Dept 2-6-15


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