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Court Could Not Promise a “Violent Felony Override” Allowing Defendant to Participate in Programs While Incarcerated—Only the DOCCS Can Determine Defendant’s Eligibility—Conviction by Guilty Plea Reversed

The Second Department determined the sentencing court had no authority to promise the defendant, as part of the plea bargain, a “violent felony override” which would allow the defendant to participate in a variety of programs while incarcerated. Where a defendant is statutorily qualified (as defendant was) it is up to the Department of Corrections and Community Supervision (DOCCS) to determine a defendant’s eligibility for the programs.  Therefore, defendant’s guilty plea was reversed because it was based in part on misinformation (not knowing and voluntary):

… [A] “violent felony override” is “an imprecise and potentially confusing term that is sometimes used to describe a document referred to in 7 NYCRR 1900.4(c)(1)(iii) that permits the Department of Corrections and Community Supervision (hereinafter DOCCS) to ascertain whether an inmate has met one of the threshold requirements to be eligible for a temporary release program despite conviction of a specified violent felony offense” (id.; see Correction Law § 851[2]; Executive Order [Spitzer] No. 9 [9 NYCRR 6.9]; Executive Order [A. Cuomo] No. 2 [9 NYCRR 8.2]; 7 NYCRR 1900.4[c][1][ii], [iii]; [2]). “Certain subdivisions of the specified violent felony offenses will not disqualify an inmate from eligibility for temporary release. The document provided for in 7 NYCRR 1900.4(c)(1)(iii) need only set forth the exact offense, including the section, and subdivision if any, of the crimes of which the inmate was convicted. When the document indicates that the inmate was convicted of a subdivision of one of the enumerated violent felony offenses that does not automatically disqualify the inmate from eligibility for temporary release, the inmate may use it to establish that he has met one of the threshold requirements for eligibility” … . The document itself does not qualify an inmate for eligibility for temporary release … “It is for DOCCS, and not the court or the district attorney, to determine whether conviction under a particular section and subdivision disqualifies an inmate from eligibility” (id.; see generally 7 NYCRR 1900.4). The issuance of the document specified in 7 NYCRR 1900.4(c)(1)(iii) is not discretionary, and a defendant is entitled to have the exact statutory provisions under which he or she was convicted specified in the sentence and commitment … .

As part of the plea agreement, the County Court promised the defendant that it would sign a “violent felony override,” which would make the defendant eligible for several programs in prison. Since the document specified in 7 NYCRR 1900.4(c)(1)(iii) does not, by itself, qualify an inmate for eligibility for temporary release, and eligibility for temporary release programs are determined by DOCCS, the court exceeded its authority by promising the defendant something that it had no authority to promise in exchange for the defendant’s plea of guilty. Under these circumstances, the defendant’s plea of guilty was not knowing, voluntary, and intelligent… . People v Ballato, 2015 NY Slip Op 04140, 2nd Dept 5-13-15

 

 

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Incorrect Information About Sentencing Provided to the Defendant by the Court and Counsel Warranted Vacating the Plea In the Absence of Preservation

The Fourth Department concluded that wrong information provided to the defendant about sentencing required vacation of the plea, in the absence of preservation by a motion to withdraw the plea.  The defendant was wrongly told by the court and counsel that his sentences on the instant offense and an unrelated offense would necessarily run consecutively. Because there was no way to expect defendant to know the information was incorrect, the error need not be preserved by a motion to withdraw the plea.  Because the plea was based upon complete confusion by all concerned, the plea was vacated:

We agree with defendant, however, that his plea should be vacated on the ground that it was not voluntarily, knowingly or intelligently entered based on the mistaken understanding of the legally required sentence shared by County Court and counsel. Although defendant failed to preserve his contention for our review …, we conclude that the narrow exception to the preservation requirement applies … . Here, it is clear from the face of the record that the prosecutor incorrectly stated that the sentence on the instant conviction must run consecutively to the sentence imposed on an unrelated conviction, when in fact that was not the case because the instant offense occurred prior to the unrelated conviction (see generally Penal Law § 70.25). It is equally clear that this error was not corrected by defense counsel or the trial court. Thus, preservation was not required “[i]nasmuch as defendant—due to the inaccurate advice of his counsel and the trial court—did not know during the plea . . . proceedings” that consecutive sentences were not required by law … . ” [D]efendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge’ ” … . Even assuming, arguendo, that the narrow exception to the preservation requirement is inapplicable, we would nevertheless exercise our power to address defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).

On the merits, we conclude that defendant’s plea should be vacated because “[i]t is impossible to have confidence, on a record like this, that defendant had a clear understanding of what he was doing when he entered his plea,” based on the prosecutor’s erroneous statement that [*2]consecutive sentences were required and the failure of the court or defense counsel to correct that error. We “cannot countenance a conviction that seems to be based on complete confusion by all concerned” … . People v Brooks, 2015 NY Slip Op 03969, 4th Dept 5-8-15

 

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Preservation by Objection Not Required When Defendant First Learns of Post-Release Supervision Moments Before Sentencing

In a full-fledged opinion by Justice Egan, the Third Department vacated defendant's plea to a probation violation because no mention of a period of post-release supervision was made until moments before sentencing.  The court determined there was no need to preserve the error by objection because the defendant had so little time between notification of the post-release supervision and sentencing:

…[W]hether preservation is necessary hinges upon whether the defendant “had ample opportunity to object after the initial [reference to postrelease supervision] was made and before sentence was formally imposed” … . Thus, where “the court first mention[s] postrelease supervision only moments before imposing the sentence,” thereby depriving the defendant of a meaningful opportunity to weigh his or her options at that stage of the proceeding, preservation is not required … .

Although we are mindful that the matter before us concerns a plea of guilty to a violation of probation — as opposed to a plea of guilty to a crime — the analysis employed by the Court of Appeals …is equally applicable here. As noted previously, County Court made no mention of postrelease supervision during the course of defendant's plea colloquy …, nor does the record indicate that defendant otherwise was made aware — prior to entering her plea to the probation violation — that postrelease supervision would be a component of her sentence … . Rather, the need to impose a period of postrelease supervision was first raised at sentencing — quite literally moments before defendant's sentence actually was imposed … . Under these circumstances, preservation was not required, and County Court's failure to apprise defendant that postrelease supervision would be a component of her sentence mandates reversal. People v Bolivar, 2014 NY Slip Op 02980, 3rd Dept 5-1-14

 

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Forcing Defendant to Go to Trial When His Expert on the Intoxication Defense Was Not Available Rendered Defendant’s Guilty Plea Involuntary and Coerced

The Third Department vacated defendant’s plea, finding that it was involuntary and coerced.  Defendant admitted shooting and killing his brother, but it was clear that defendant was highly intoxicated at the time of the offense.  County Court set the matter down for trial at a time the defendant’s expert on the intoxication defense was not available, after the court concluded there was no merit to the defense. During the plea colloquy the defendant answered “to the best of my recollection” when asked whether he had caused the death of his brother. Under these circumstances the waiver of appeal and the failure to preserve the error did not preclude review:

…[D]efendant’s challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal but is unpreserved for our review in the absence of a motion to withdraw his plea … . That said, we nonetheless are persuaded that the narrow exception to the preservation requirement was triggered here, as defendant’s qualified response — “[t]o the best of my recollection” — to County Court’s key question during the course of the plea allocution cast doubt upon his guilt and/or otherwise called into question the voluntariness of his plea, thereby obligating County Court to undertake further inquiry prior to accepting defendant’s plea … — particularly in view of the transcripts of the 911 call, wherein defendant clearly indicated that he had been drinking on the day of the shooting, and defendant’s Town Court arraignment, wherein the Town Judge expressed concerns regarding defendant’s ability to understand the charges against him due to his apparent level of intoxication. We also find merit to defendant’s claim that his plea was coerced. As noted previously, defendant entered his plea of guilty in response to the prospect of proceeding to trial within a matter of days and without an expert witness, and such plea was entered on the heels of County Court’s questionable, pretrial analysis as to the viability of defendant’s asserted intoxication defense. Under these circumstances, we are unable to conclude that defendant’s guilty plea was knowing, intelligent and voluntary. People v Lang, 2015 NY Slip Op 02809, 3rd Dept 4-2-15

 

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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

 

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Failure to Warn Defendant His Guilty Plea Could Lead to Deportation, Prior to the Supreme Court’s 2010 Decision in Padilla v Kentucky, Did Not Constitute Ineffective Assistance of Counsel

The Second Department determined that the failure to notify the defendant prior his guilty plea (in 2000) could be the basis of deportation proceedings did not constitute ineffective of counsel:

On March 31, 2010, the United States Supreme Court held in Padilla v Kentucky (559 US 356) that the Sixth Amendment requires defense attorneys to inform noncitizen clients of the deportation risks of guilty pleas. However, Padilla does not apply retroactively to persons whose convictions became final before Padilla was decided … . Without the benefit of the Padilla rule, the alleged failure of the defendant’s attorney to properly advise him of the possibility that he might be deported as a result of his plea does not constitute deficient performance under the United States or New York Constitutions. At the time that the defendant entered his plea of guilty in 2000, defense counsel’s performance was governed by the rule that “the failure of [defense] counsel to warn [a] defendant of the possibility of deportation [did not] constitute ineffective assistance of counsel” … . People v Taylor, 2015 NY Slip Op 00563, 2nd Dept 1-21-15

 

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Failure to Move to Withdraw Plea, and Thereby Preserve the Issue for Appeal, Did Not Prohibit Appeal Here—Defendant Was Wrongly Informed by the Court and Counsel that the Denial of His Speedy Trial Motion Would Be Appealable After the Plea

The Third Department reversed Supreme Court and vacated defendant's guilty plea because defendant was wrongly informed by the court and counsel that his statutory speedy trial issue would survive the guilty plea (for appeal).  Under the circumstances, the court determined the failure to preserve the error by moving to withdraw the plea did not prohibit the appeal:

The People concede that an essential term of the plea bargain was the parties' understanding that defendant would retain the right to appeal the denial of his motion to dismiss on speedy trial grounds. Defendant was thereafter sentenced … . Defendant now appeals, arguing that his plea was involuntarily entered because his counsel and County Court erroneously informed him that a statutory CPL 30.30 claim would survive a plea of guilty.

Initially, we consider whether defendant was required to preserve this claim by appropriate postallocution motion (see CPL 220.60 [3]; 440.10). While a challenge to the validity of a guilty plea is generally not preserved for appellate review unless it was first raised in the trial court …, the Court of Appeals has recognized that “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required” … . Here a CPL 440.10 motion was unavailable because the error is clear from the face of the record; similarly a CPL 220.60 (3) motion was practically unavailable because “'defendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge'” … . Inasmuch as defendant–due to the inaccurate advice of his counsel and the trial court–did not know during the plea and sentencing proceedings that his statutory speedy trial claim would be forfeited as a direct consequence of his plea …, preservation was not required … . Moreover, under these circumstances, we agree with defendant that his guilty plea was not knowing, intelligent and voluntary and, accordingly, we reverse and vacate the plea … . People v Williams, 2014 NY Slip Op 09067, 3rd Dept 12-31-14


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Defendant Who Pled Guilty Without Counsel and Who Was Not Advised of His Right to Appeal May Raise a “Deprivation of the Right to Counsel” Claim In a Motion to Vacate the Judgment of Conviction, Even Though the Issue Could Have Been Raised on Direct Appeal (No Appeal Was Perfected)

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined the defendant should be allowed to raise the argument that he was deprived of his right to counsel in a motion to vacate the judgment of conviction pursuant to Criminal Procedure Law (CPL) 440.10, even though the issue could have been raised on direct appeal.  The defendant had appeared pro se, had pled guilty and did not appeal.  The judge did not advise the defendant of his right to appeal:

It is correct as a general matter that, when the record is sufficient to permit review of an issue on direct appeal, a defendant who either has not appealed his conviction or, having appealed, has failed to raise that issue is barred from later asserting it as a basis for post-conviction relief … .  * * *

But there is an obvious risk of unfairness in applying this procedural bar where the ground that the defendant seeks to raise is that he was deprived of his right to counsel. If he was indeed deprived of that right, that very deprivation may well have led him either not to appeal or not to have presented the issue to an appellate court. A defendant who has wrongly been deprived of a lawyer can hardly be blamed for failing to follow customary legal procedures. * * *

We conclude, in short, that defendant was not barred from raising his right to counsel claim in a CPL 440 motion. We express no opinion on the merits of the claim.  People v Grubstein, 2014 NY Slip Op 07924, CtApp 11-18-14

 

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Guilty Plea Based on a Sentence Promise that Neither the Court Nor the Parties Realized Was Illegal Requires Vacation of the Conviction in the Absence of Preservation—Notwithstanding the Fact the Sentence Was Ultimately Rendered Legal by an Enhancement Imposed Because the Defendant Violated the Terms of His Release Pending Sentencing

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissent, determined that a guilty plea cannot stand where neither the court nor the parties was aware that the agreed upon sentence was illegal, even though the sentence was rendered “legal” by an enhancement.  The sentence promise was three years, but, given the defendant’s prior record, the minimum sentence he could legally receive was six years. Because the defendant was found to have violated the terms of his release pending sentencing, he was ultimately sentenced to six years as an enhanced sentence. The court summarized the facts and its ruling as follows:

The principal question presented here is whether a judgment of conviction, entered upon a guilty plea to a particular crime, may stand when the record discloses that neither the court nor the parties realized that the agreed upon sentence, to be imposed if defendant complied with the conditions of the plea, was illegal. Although defendant violated the conditions of his plea, and the enhanced sentence was legal, defendant is entitled to a plea vacatur for two fundamental reasons. First, defendant’s constitutional claim that his plea violated due process because it was induced by an illegal promise need not be preserved. Second, to accept a guilty plea induced by an illegal promise affects the fairness, integrity and public reputation of judicial proceedings as the defendant could not have had a full understanding of what the plea connotes and its consequences … or “exercised a voluntary and intelligent choice among the alternative courses of action open to the defendant” … . People v Williams, 2014 NY Slip Op 07458, 1st Dept 10-30-14

 

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Where Deportation As a Result of a Guilty Plea Is Not Mentioned by the Court, Preservation of the Error Is Not Required

The Second Department noted that, where the court does not mention the prospect of deportation as a result of a guilty plea, the error need not be preserved and the defendant should be given the opportunity to demonstrate to the court the guilty plea would not have been entered if the possibility of deportation were known. People v Al-Mulwallad, 2014 NY Slip OP 07361, 2nd Dept 10-29-14

 

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