The People, Respondent,v.Andre Collier, Appellant.BriefN.Y.November 13, 2013Appellate Division — Third Department Docket Nos. 104033 and 102846 Albany County Indictment Number: 21-9181 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against ANDRÉ COLLIER, Appellant. >> >> BRIEF FOR APPELLANT CLAUDE CASTRO & ASSOCIATES PLLC Attorneys for Appellant 444 Madison Avenue, Suite 500 New York, New York 10022 212-810-2710 Date Completed: March 11, 2013 Of Counsel: Claude Castro D. Paul Martin To Be Argued By: Claude Castro Time Requested: 30 Minutes TABLE OF CONTENTS Page PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 POINT I THE TRIAL COURT AND THE THIRD DEPT. ERRED BY DENYING APPELLANT’S REQUEST TO WITHDRAW HIS PLEA AND THEN IMPOSING A GREATER SENTENCE THAN APPELLANT HAD AGREED TO IN HIS PLEA BARGAIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The Third Dept. Properly Held that Appellant’s Motion to Vacate and Set Aside was Not Barred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Notwithstanding the Foregoing, the Third Dept. Erred by Denying Mr. Collier’s Application to Withdraw His Plea . . . . . . . . . . . . . . . . 13 POINT II THE TRIAL COURT AND THE THIRD DEPT. ERRED BY RENDERING APPELLANT’S PLEA BARGAIN INVOLUNTARY AND UNCONSTITUTIONAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 i TABLE OF AUTHORITIES Page Cases People v. Armstead, 52 A.D.2d 966 (3d Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Bruning, 45 A.D.3d 1179 (3d Dept. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Cameron, 83 N.Y.2d 838 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Catu, 4 N.Y.3d 242 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18 People v. Collier, 52 A.D.3d 1121 (3d Dept. 2008), lv denied 11 N.Y.3d 786 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Donnelly, 80 A.D.3d 797 (3d Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Ford, 86 N.Y.2d 397 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Hill, 9 N.Y.3d 189 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Kinch, 15 A.D.3d 780 (3d Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Martin, 278 A.D.2d 743 (3d Dept. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16 People v. Rivera, 51 A.D.3d 1267 (3d Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Rowlands, 8 N.Y.3d 342 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 21, 24 People v. Squitieri, 60 A.D.3d 1208(3d Dept. 2009), lv denied 13 N.Y.3d 839 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Taveras, 10 N.Y.3d 227 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 People v. Tubbs, 157 A.D.2d 915(3d Dept. 1990), lv denied 76 N.Y.2d 744 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Van Deusen, 7 N.Y.3d 744 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18 People v. Warren, 74 A.D.3d 1639 (3d Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ii iii People v. White, 75 A.D.3d 1002 (3d Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Statutes CPL § 225.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CPL §§ 440.10 and 440.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 6, 10 CPL § 440.10(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12 CPL § 440.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11, 12 CPL § 440.20(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Penal Law § 70.04(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Penal Law § 160.15(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Other Authorities Preiser, Practice Commentaries, McKinney's Cons. Laws of NY, Book 11A, CPL § 440.20, p. 10-11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Staff Comment of Temp. St. Commn. on Rev. of Penal Law and Crim. Code, 1967 Proposed N.Y. CPL § 225.10, at 295 . . . . . . . . . . . . . . . . . . . . . . . 11 PRELIMINARY STATEMENT This brief is respectfully submitted on behalf of Defendant-Appellant Andre Collier (“Mr. Collier” and/or the “Appellant” hereinafter) in support of his appeal from two Orders of the Appellate Division, Third Department (the “Orders”): I. The first Order of the Appellate Division, Third Department, entered on December 2, 2010 (A3-A5)1 (the “First Order”), is appealed from to the extent that it modified an order of the County Court of Albany County, entered August 19, 2009 (A73-A75), by granting Appellant’s motion (A34-A35) pursuant to CPL §§ 440.10 and 440.20 to vacate a judgment of conviction and set aside the sentence based on the illegality of Mr. Collier’s sentence on the fifth count of Robbery in the First Degree, which required the plea agreement to “be vacated in its entirety regardless of whether portions of the sentence are legal” (A5), and remitted the matter to the County Court of Albany County “to either resentence defendant in the manner that ensures that he receives the benefit of his bargain or permit both parties the opportunity to withdraw from the plea agreement”. (A5). II. The second Order of the Appellate Division, Third Department, entered on January 5, 2012 (A6-A8) (the “Second Order”), is appealed from to the extent that it affirmed a judgment of the County Court of Albany County, rendered 1 All references are to the Appellant’s Appendix. 1 January 13, 2011 (A24-A30), which denied Mr. Collier the opportunity to withdraw from his plea agreement and resentenced Mr. Collier, following his conviction upon his plea of guilty to two counts of Robbery in the First Degree in satisfaction of a five-count indictment, to concurrent prison terms of 25 years on the first count and 10 years on the fifth count, which terms are to be followed by five years of post-release supervision. Leave to appeal to this Court was granted by Certificate Granting Leave, dated September 18, 2012 (Robert S. Smith, A.J.) (A2). As will be demonstrated herein below in greater detail, the Orders appealed from should be reversed because the Appellant Division, Third Department (the “Third Dept.”), and the County Court of Albany County (the “Trial Court”) erred in denying Mr. Collier the opportunity to withdraw from his plea agreement following the Third Dept.’s finding in its First Order that the sentence and plea agreement were illegal. Further, the Trial Court and the Third Dept. erred by resentencing and affirming that resentencing of Mr. Collier to a sentence greater than that agreed to in the plea agreement, thereby violating a right of the Appellant and procuring the guilty plea by misrepresentation. 2 QUESTIONS PRESENTED 1. Did the County Court of Albany County err by denying Appellant’s request to withdraw his plea of guilty prior to resentencing? Answer: Yes. 2. Did the Appellate Division, Third Department, err by affirming the County Court of Albany County’s denial of Appellant’s request to withdraw his plea of guilty prior to resentencing? Answer: Yes. 3. Did the County Court of Albany County err by resentencing Appellant to 25 years on the first count of Robbery in the First Degree and 10 years on the second count of Robbery in the Second Degree, following a denial of Appellant’s request to withdraw his plea of guilty, thereby rendering Appellant’s plea agreement involuntary? Answer: Yes. 4. Did the Appellate Division, Third Department, err by affirming the County Court of Albany County’s resentencing of Appellant to 25 years on the first count of Robbery in the First Degree and 10 years on the second count of Robbery in the Second Degree? Answer: Yes. 3 STATEMENT OF FACTS On April 22, 2005, Mr. Collier pleaded guilty to count one and count five of a five-count indictment which charged him with five counts of Robbery in the First Degree, a class B felony, in violation of Penal Law § 160.15(3). (A45- A57; A10-A14) Mr. Collier’s plea agreement consisted of a guilty plea in exchange for a sentence of a determinate prison term of 25 years with 5 years post-release supervision on count one, and a determinate prison term of 5 years with 5 years post release supervision on count five. (A47) County Court of Albany County (Breslin, J.) had informed Mr. Collier that the Trial Court would determine whether the sentences would run concurrently or consecutively after reviewing the presentence investigative report. (A47) Mr. Collier was then sentenced on June 17, 2005 in accordance with his plea agreement to a sentence of a determinate prison term of 25 years with 5 years post-release supervision on count one, and a determinate prison term of 5 years with 5 years post release supervision on count five. (A63-A71) The Trial Court found the presentence investigative report to be unfavorable, and sentenced Mr. Collier to consecutive terms of 25 years on count one and 5 years on count five. (A69) In a letter dated April 5, 2006, Kathleen Brew, the Inmate Record Coordinator at Five Points Correctional Facility, informed the Trial Court that the 4 5 year determinate sentence on count five was illegal because it violated statutory sentencing requirements. (A72) Specifically, the Trial Court was required to sentence Mr. Collier, as a second violent felony offender, to a determinate term of no less than 10 years on each count. Mr. Collier appealed his 25 year sentence on count one as harsh and excessive, and his sentence was affirmed by the Third Dept. in a Memorandum and Order, entered June 26, 2008.2 Thereafter, Mr. Collier subsequently made an application before the Trial Court, pursuant to CPL §§ 440.10 and 440.20, for an order vacating his guilty plea on both counts of Robbery in the First Degree and setting aside the 5 year determinate sentence on count five on the grounds that (i) the sentence on count five was illegal, (ii) the guilty plea was procured by misrepresentation, and (iii) the guilty plea was obtained in violation of a right of the defendant under the Constitution of the State of New York and/or the Constitution of the United States. (A34-A44) In a Decision and Order, dated August 10, 2009, the Trial Court denied Mr. Collier’s CPL §§ 440.10 and 440.20 motion. (A73-A75) In its decision, the Trial Court erroneously found that Mr. Collier’s motion must be denied because he had already appealed his conviction and had failed to raise the 2 See People v. Collier, 52 A.D.3d 1121 (3d Dept. 2008), lv denied 11 N.Y.3d 786 (2008). 5 relevant issues on his direct appeal, although he had the opportunity to do so. (A74-A75) Thereafter, Mr. Collier appealed from the Trial Court’s Decision and Order, dated August 10, 2009, to the Third Dept. (A33) In a Memorandum and Order, dated December 2, 2010, the Third Dept. found (i) that Mr. Collier’s CPL §§ 440.10 and 440.20 motion “is not barred by the failure to raise the issue of illegality on the direct appeal” (A4), (ii) that the 5 year sentence on count five was illegal (A4), and (iii) that “inasmuch as an illegal sentence cannot stand, and the entire sentence is part and parcel of the plea bargain, it must be vacated in its entirety regardless of whether portions of the sentence as legal” (A4-A5). The Third Dept. then vacated both sentences and remitted the case to the Trial Court to “either resentence defendant in a manner that ensures that he receives the benefit of his sentencing bargain or permit both parties the opportunity to withdraw from the plea agreement”. (A5) Thereafter, on January 13, 2011, Mr. Collier appeared before the Trial Court and requested that he be permitted to withdraw his plea of guilty in accordance with the Third Dept.’s Memorandum and Order, dated December 2, 2010: “Mr. Meany: I discussed the matter with my client. Our application is to be allowed to withdraw the plea. 6 The Court: What is the People’s position? Mr. Rossi: The People’s position is that the Court should sentence the defendant in a manner that gives him the benefit of the bargain. The Court: It is my intention, then, to do so. Mr. Meany: Just so the record is clear, Judge, my client has asked me to say that is not with our consent.” (A26-A27) The Trial Court denied Mr. Collier’s request to withdraw his guilty plea on the ground the Trial Court “can do one of two things” and that it “was choosing to do the former” by sentencing Mr. Collier “in a manner that ensures that he receives the benefit of the sentencing bargain”. (A27) The Trial Court then increased Mr. Collier’s aggregate sentence by resentencing Mr. Collier to 25 years on count one and increasing the sentence on count five from 5 years to 10 years, to run concurrently with the 25 year sentence on count one, along with 5 years of post-release supervision on each count. (A29-A30) Mr. Collier then appealed to the Third Dept. from the Trial Court’s foregoing judgment, rendered January 13, 2011 (A9), which denied Mr. Collier the opportunity to withdraw from his plea agreement and resentenced Mr. Collier to concurrent prison terms of 25 years on the first count and 10 years on the fifth count, which terms are to be followed by five years of post-release supervision. 7 In a Memorandum and Order, dated January 5, 2012 (A6-A8), the Third Dept. affirmed the Trial Court’s resentencing of Mr. Collier and erroneously found (i) that Mr. Collier “actually received a lesser sentence under the resentence than the one he agreed to under the plea agreement because County Court directed that the sentences run concurrently, instead of consecutively, thereby reducing his aggregate prison exposure from 30 to 25 years” (A7), (ii) that Mr. Collier “received a sentence that was better than the benefit of his bargain upon resentencing” (A7), and (iii) that the Trial Court “was not required to allow him to withdraw his plea” (A7). By Certificate Granting Leave, dated September 18, 2012 (Robert S. Smith, A.J.) (A2), the Court of Appeals granted Mr. Collier’s application for leave to appeal from the two foregoing Orders of the Appellate Division, Third Department and “certified that questions of law are involved which ought to be reviewed by the Court of Appeals”. (A2) 8 ARGUMENT POINT I THE TRIAL COURT AND THE THIRD DEPT. ERRED BY DENYING APPELLANT’S REQUEST TO WITHDRAW HIS PLEA AND THEN IMPOSING A GREATER SENTENCE THAN APPELLANT HAD AGREED TO IN HIS PLEA BARGAIN The Third Dept. Properly Held that Appellant’s Motion to Vacate and Set Aside was Not Barred It is respectfully submitted that the Third Dept. properly reversed the Trial Court’s denial of Mr. Collier’s motion to vacate and set aside his plea and properly rejected the Trial Court’s assertion that said motion should be denied pursuant to CPL § 440.10(2)(c) on the ground that it was barred because Mr. Collier had not raised the issue on direct appeal. CPL § 440.10(2)(c) requires a court to deny a motion to vacate a judgment if: “sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, [and] no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him”. See CPL § 440.10 (2)(c). There is no such mandate in CPL § 440.20 and the Third Dept. properly held that “a motion to set aside a sentence pursuant to CPL § 440.20 is not 9 barred by the failure to raise the issue of illegality on the direct appeal” (A4). Rather, a parallel provision in CPL § 440.20(2) requires a court to deny a motion to set aside a sentence if “the ground or issue raised thereupon was previously determined on the merits upon an appeal from the judgment or sentence”. See CPL § 440.20(2). No provision in CPL § 440.20 authorizes a court to deny a motion to set aside a sentence because a defendant could have raised the issue on appeal but did not. The Practice Commentaries to CPL § 440.20 address this difference in the two statutes by explaining that, like a motion to vacate judgment: “[T]he motion to set aside sentence must be denied when the grounds urged have previously been determined upon appeal, subject to considerations of retroactivity. There is, however, one major difference. A motion to set aside sentence may be brought even though the illegality upon which it is grounded presently is appealable or could with due diligence have been appealed.” See Preiser, Practice Commentaries, McKinney's Cons. Laws of NY, Book 11A, CPL § 440.20, p. 10-11. Indeed, few cases address this difference between CPL §§ 440.10 and 440.20 due to the clarity of the statutes and the legislative history. This Court recently recognized that a defendant may still pursue a motion to set aside an illegal sentence even though his appeal has been dismissed. See People v. Taveras, 10 N.Y.3d 227, 233 (2008). In Taveras, this Court affirmed the First Department’s dismissal on other grounds, but noted that “defendant Taveras is 10 not foreclosed from challenging his purported illegal sentence pursuant to CPL § 440.20”. Id. at 233. Based on the foregoing, it is respectfully submitted that the Third Dept. was correct in holding in its First Order that Mr. Collier’s motion was “not barred by the failure to raise the issue of illegality on the direct appeal” (A4). While the language of CPL § 440.20 is unambiguous, making it unnecessary to employ any other means of interpretation to determine the legislative intent, the legislative history does indicate that the legislature intended to create different procedural requirements for the two motions. The Staff Comment to CPL § 225.10, which was later enacted as CPL § 440.20, explains why the motion to set aside a sentence is permitted even though the grounds could have been addressed on appeal: “As with the principal motion to vacate a judgment [§ 225.10(2a)], use of the sentence motion is ordinarily barred when the ground urged has been previously determined upon appeal (subd. 2). Unlike the former, however, the circumstance that the issue is presently appealable or could with due diligence have been appealed [see § 225.10 (2b, c)] does not authorize the court to refuse to entertain the sentence motion. An illegal sentence, it is believed, should be subject to challenge and rectification in the trial court without compelling the defendant to pursue the more lengthy and cumbersome appellate procedure.” See Staff Comment of Temp. St. Commn. on Rev. of Penal Law and Crim. Code, 1967 Proposed N.Y. CPL § 225.10, at 295. 11 It is respectfully submitted that, had the legislature intended CPL § 440.20 to require a defendant to raise any issue regarding the illegality of a sentence in a direct appeal, they would have included the same language that is found in CPL § 440.10(2)(c). Here, Mr. Collier’s plea agreement and the resulting original sentence of a determinate 5 year term on count five was illegal given his status as a second violent felony offender. See Penal Law § 70.04(3)(a). While Mr. Collier had previously appealed his sentence on count one as harsh and excessive, his appeal did not address the illegal sentence he received on count five. As such, it is respectfully submitted that it was error for the Trial Court to deny Mr. Collier’s CPL § 440.20 motion on the ground that he could have raised the illegality of the sentence in his appeal, because CPL § 440.20 does not authorize a court to deny a motion to set aside sentence on this ground. Further, the Third Dept. correctly reversed the Trial Court’s denial of Mr. Collier’s motion and correctly vacated Mr. Collier’s entire sentence because “inasmuch as an illegal sentence cannot stand, and the entire sentence is part and parcel of the plea bargain, it must be vacated in its entirety regardless of whether portions of the sentence are legal”. (A4-A5) However, as will be demonstrated herein below, it is respectfully submitted 12 that the Trial Court and the Third Dept. erred by not permitting Mr. Collier to withdraw his plea. Notwithstanding the Foregoing, the Third Dept. Erred by Denying Mr. Collier’s Application to Withdraw His Plea It is respectfully submitted that, as the Third Dept. properly held, Mr. Collier’s 5 year sentence on count five was illegal and was required to be vacated because the agreed upon sentence of 5 years was less than the minimum required by law. Further, the Third Dept. was correct in holding that “inasmuch as an illegal sentence cannot stand, and the entire sentence is part and parcel of the plea bargain, it must be vacated in its entirety regardless of whether portions of the sentence are legal”. (A4-A5) Thus, it is respectfully submitted that, in its First Order, the Third Dept. properly vacated Mr. Collier’s entire sentence, which consisted 25 years on count one and 5 years on count five, with 5 years post release supervision on each count. Further, the Third Dept. remitted the case to the Trial Court to “either resentence defendant in a manner that ensures that he receives the benefit of his sentencing bargain or permit both parties the opportunity to withdraw from the plea agreement”. (A5) It is clear from the Record before this Court that Mr. Collier did in fact request to withdraw his plea before he was resentenced to a greater sentence by the Trial Court. (A26-A27) Mr. Collier’s request to withdraw his 13 plea should have been granted because his guilty plea was conditioned on the understanding that he would receive a 25 year sentence on count one, and a 5 year sentence on count five. The Trial Court, despite modifying Mr. Collier’s sentence from consecutive to concurrent, did in fact increase Mr. Collier’s aggregate sentence by resentencing him to 25 years on count one and 10 years on count five, for a total sentence of 30 years. Significantly, it is respectfully submitted that “aggregate prison exposure”, as referred to by the Third Dept. in its Second Order (A7), is irrelevant here because Mr. Collier’s two sentences are separate and distinct and operate independent from each other. To take the Third Dept.’s holding to its logical conclusion would mean that the Trial Court’s resentencing must be upheld regardless of the sentence on count five, as long as the sentences are modified to run concurrently rather than consecutively. Indeed, based on the Third Dept.’s holding, Mr. Collier could have been resentenced to 25 years on count one and an additional 25 years on count five, but the Third Dept. believes that as long as the sentences are concurrent Mr. Collier has actually benefitted from the resentencing and must accept it despite the fact that he consented only to a 5 year sentence on count five and nothing further. It is respectfully submitted that the sentence itself and a defendant’s consent thereto, not the “aggregate prison exposure”, is dispositive here. 14 Moreover, where the plea bargain includes a sentence which is illegal because the minimum imposed is less than that required by law, the Third Dept. has previously held that the proper remedy is to vacate the sentence and afford the defendant, having been denied the benefit of the bargain, the opportunity to withdraw the plea. See People v. Martin, 278 A.D.2d 743, 744 (3d Dept. 2000). Here, Mr. Collier received a legal sentence on count one and an illegal sentence on count five. Because the sentence on count five was less than the minimum required to be imposed by law, the proper remedy as previously held by the Third Dept. is to vacate Mr. Collier’s sentence and allow him to withdraw his plea, just as he requested to do prior to resentencing. Further, because both sentences were part of the agreed upon plea bargain, Mr. Collier agreed to accept a 25 year sentence on count one with the understanding that he would receive a 5 year sentence on count five, with the possibility that the Trial Court run the sentences consecutively, just as it did at the initial sentencing hearing. (A70) It is respectfully submitted that, because both sentences were part of Mr. Collier’s plea bargain, and the plea bargain cannot be legally fulfilled, both sentences must be vacated and Mr. Collier must given the opportunity to withdraw his plea in its entirety. Further, prior to accepting a defendant’s guilty plea, a court must ensure that the defendant fully understands the consequences of the plea. The 15 court’s failure to do so violates the defendant’s right to due process because the plea was not knowing, voluntary and intelligent. See People v. Hill, 9 N.Y.3d 189, 191 (2007); People v. Van Deusen, 7 N.Y.3d 744, 745-746 (2006); People v. Catu, 4 N.Y.3d 242, 244-245 (2005); People v. Ford, 86 N.Y.2d 397 (1995); People v. Rivera, 51 A.D.3d 1267, 1269-70 (3d Dept. 2008). A court may not impose a sentence on a defendant other than the sentence agreed upon unless (i) the defendant was informed at the time of the plea that a different sentence could be imposed if certain conditions were not met, or (ii) the defendant was given the opportunity to withdraw his plea. See People v. Donnelly, 80 A.D.3d 797, 798 (3d Dept. 2011); People v. Armstead, 52 A.D.2d 966, 967 (3d Dept. 2008); People v. Bruning, 45 A.D.3d 1179, 1180 (3d Dept. 2007); People v. Kinch, 15 A.D.3d 780, 781 (3d Dept. 2005). If the promised sentence cannot be imposed because it is less than the minimum legally mandated, such as the case presently before the Court, the proper remedy is to allow the defendant the option to withdraw his plea. See People v. Cameron, 83 N.Y.2d 838, 840 (1994); People v. Warren, 74 A.D.3d 1639, 1640 (3d Dept. 2010); People v. Martin, 278 A.D.2d 743, 744 (3d Dept. 2000). If the defendant is given the opportunity to withdraw the plea and declines to do so, an enhanced sentence may then be imposed, but not otherwise. See People v. Squitieri, 60 A.D.3d 1208, 1209 (3d Dept. 2009), lv denied 13 16 N.Y.3d 839 (2009); People v. Tubbs, 157 A.D.2d 915, 916 (3d Dept. 1990), lv denied 76 N.Y.2d 744 (1990). Here, in its First Order, the Third Dept. remitted the case to the Trial Court to “either resentence defendant in a manner that ensures that he receives the benefit of his sentencing bargain or permit both parties the opportunity to withdraw from the plea agreement”. (A5) However, it was reversible error for the Trial Court to disregard Mr. Collier’s request to withdraw his plea due to the fact that the Trial Court then resentenced Mr. Collier to 10 years on count five, a sentence that was greater than his plea agreement and which was never consented to be Mr. Collier. 17 POINT II THE TRIAL COURT AND THE THIRD DEPT. ERRED BY RENDERING APPELLANT’S PLEA BARGAIN INVOLUNTARY AND UNCONSTITUTIONAL The imposition of a sentence different than that agreed upon by the defendant, without affording the defendant the opportunity to withdraw from the plea bargain, renders the plea involuntary and, because the “constitutional defect lies in the plea itself...., vacatur of the plea is the remedy”. See People v. Hill, 9 N.Y.3d 189, 191 (2007); see also, People v. Van Deusen, 7 N.Y.3d 744, 745-746 (2006); and People v. Catu, 4 N.Y.3d 242, 244-25 (2005). At the time Mr. Collier pleaded guilty, he had agreed to do so in exchange for a 25 year sentence on count one and a 5 year sentence on count five, with 5 years of post-release supervision in addition to each sentence, and the sentences were to run concurrently or consecutively based on the Trial Court’s assessment of Mr. Collier’s presentence investigation report. When the Trial Court resentenced Mr. Collier, it increased the sentence on count five from 5 years to 10 years, despite Mr. Collier’s request that he be permitted to withdraw his plea. In doing so, it is respectfully submitted that the Trial Court rendered Mr. Collier’s plea involuntary, since he had not been informed at the time of the plea that there was a possibility that the sentence on count five would be greater than 5 years. In fact, neither Mr. Collier, the People, nor the Trial Court knew at the time that Mr. 18 Collier agreed to the plea agreement that count five required a minimum sentence of 10 years. Significantly, the People have conceded below that a defendant’s due process rights are violated when he is resentenced to a greater sentence than was originally agreed upon in a plea bargain if the defendant was not first given the opportunity to withdraw his plea, as is the case presently before this Court. However, the People then incorrectly contend that the Trial Court did not impose a greater sentence than Mr. Collier agreed to in the plea bargain when it resentenced him to 10 years on count five, instead of the 5 years that Mr. Collier agreed to in the plea bargain, because the Trial Court chose to run the sentences concurrently instead of consecutively. However, it is clear that the sentence imposed by the Trial Court at resentencing was greater than the sentence agreed upon by Mr. Collier in the plea agreement. By enhancing Mr. Collier’s sentence after denying his request to withdraw his plea, the Trial Court rendered his plea involuntary and unconstitutional. To evaluate whether a resentencing violated a defendant’s due process rights, it is necessary to look at the agreement at the time the defendant entered the guilty plea, not compare the sentence imposed at resentencing to the sentence that was initially imposed and subsequently vacated. See People v. 19 Rowlands, 8 N.Y.3d 342, 345 (2007); People v. White, 75 A.D.3d 1002, 1003 (3d Dept. 2010). It is respectfully submitted that the Third Dept. erred by focusing on the aggregate sentence ultimately imposed, which is not determinative of whether the plea agreement has been upheld or violated. All of the terms and elements of the plea agreement must be considered. See People v. Rowlands, 8 N.Y.3d at 345. Further, “aggregate prison exposure” is not part of the equation. This Court’s holding in People v. Rowlands is on point and is instructive here. In Rowlands, the defendant pled guilty to criminally negligent homicide and criminal possession of a weapon in the third degree in exchange for an aggregate sentence of 4 to 8 years to run concurrently with previously imposed consecutive sentences with an aggregate term of 3 to 7 years. See Id. at 344. Therefore, the defendant’s sentence was increased. Subsequently, one of the previous convictions was reversed and the defendant accepted a plea bargain to a lesser sentence on that charge, resulting in a reduction of 1 to 3 years from the sentence in effect at the time he pled guilty to the later charge. See Id. In holding that the defendant was entitled to withdraw his plea to the later charges, even though the later sentence had required prison time above and beyond that required by the preexisting sentence, this Court stated that the issue did not turn on the amount of extra time the defendant would serve; rather, “[t]he 20 critical question is whether the removal or reduction of the preexisting sentence nullified a benefit that was expressly promised and was a material inducement to the guilty plea”. Id. at 345. Here, Mr. Collier is clearly losing a benefit that was expressly promised to him and was a material inducement to his guilty plea: a 5 year sentence on count five, which has now been doubled by the Trial Court to a 10 year sentence despite Mr. Collier’s request to withdraw his plea. Further, this Court has made it clear in People v. Hill that the failure to inform a defendant of the direct consequences of a plea violates the defendant’s due process rights and, in such a situation, the proper remedy is for the reviewing court to vacate the involuntary plea rather than assess whether the defendant received the benefit of his bargain. See People v. Hill, 9 N.Y.3d 189, 192-193 (2007). In fact, this Court has expressly “rejected the Appellate Division’s rationale that vacatur of a guilty plea was not required when the sentencing court gave the defendant the benefit of her plea bargain, exposing her to a shorter total period of punishment.” See Id. at 192. This Court went on to state that “[i]n effect, the Court rejected harmless error analysis by requiring vacatur of defendant’s guilty plea” and held that it is “irrelevant that the prison sentence 21 added to postrelease supervision is within the range of prison time promised at the allocution”. See Id. at 192. Further, in People v. Hill, this Court stated: “The dissent incorrectly believes that Catu and Van Deusen turned on the question whether ‘the defendant got the full benefit of her plea bargain’; thus, the dissent attempts to undo the prejudice of defendant’s involuntary guilty plea. Rather, Catu, Van Deusen and Louree made clear that the courts violated the defendant’s due process rights not the defendant’s sentencing expectations. Therefore, we vacated the defendants’ involuntary guilty pleas to remedy the constitutional violations.” See Id. at 193. Here, Mr. Collier agreed to a guilty plea in exchange for one of two options, to be chosen by the Trial Court: I. A 25 year sentence on count one and a 5 year sentence on count five, to run concurrently; or II. A 25 year sentence on count one and a 5 year sentence on count five, to run consecutively. In each option, 5 years of postrelease supervision was to follow each sentence. Significantly, neither of the agreed upon options included a 10 year sentence on count five. At resentencing, Mr. Collier specifically requested that he be permitted to withdraw his plea. The People opposed this request, and the Trial Court imposed a sentence that was greater than the sentencing options agreed upon at the time of Mr. Collier’s plea. 22 The fact that the Trial Court imposed the 10 year sentence concurrently, rather than consecutively, is an irrelevant issue of “sentencing expectations” and ignores the fact that Mr. Collier’s constitutional rights were violated by the resentencing. Further, the resentencing of Mr. Collier to concurrent sentences does not change the fact that the sentence is in fact greater than what was agreed upon in the plea bargain; this is particularly true in light of the fact that the sentences on counts one and five are separate and distinct and operate independently of one another. Moreover, should one of the sentences be vacated the other sentence may remain valid. In the event that Mr. Collier’s sentence on count one were vacated or the conviction were reversed and the sentence on count five remained intact, Mr. Collier would be forced to serve a greater sentence than the one he had agreed to in exchange for his guilty plea. Significantly, affirming the Third Dept.’s Second Order would set a dangerous precedent of permitting a court to sentence to a defendant to a greater term of incarceration than that agreed upon in a plea bargain, so long as that sentence is no greater than any other sentences running concurrently. According to the foregoing reasoning, the Trial Court could have imposed concurrent 25 year sentences on counts one and five and still not have violated Mr. Collier’s due process rights because the “aggregate prison exposure”, a term coined by the Third Dept. in its Second Order, was no greater than the initial sentence. 23 However, the case law established by this Court in People v. Rowlands, supra, and People v. Hill, supra, makes clear that the length of the aggregate sentence is not the determinative factor. Rather, the courts must assess whether the defendant’s plea was “knowing, voluntary and intelligent”, and whether any error, even “harmless error”, occurred. See People v. Hill, 9 N.Y.3d at 191. Essentially, the courts must determine whether the defendant “possessed the requisite information knowingly to waive his rights”. See Id., at 192. As such, the question for the Trial Court prior to resentencing was whether Mr. Collier would have accepted a plea bargain consisting of a guilty plea in exchange for one of two options, to be chosen by the Trial Court: I. A 25 year sentence on count one and a 10 year sentence on count five, to run concurrently; or II. A 25 year sentence on count one and a 10 year sentence on count five, to run consecutively. In each option, 5 years of postrelease supervision would follow each sentence. There is nothing in the record to indicate that Mr. Collier would have agreed to a guilty plea had this been the offer. In fact, at the resentencing hearing, when being faced with essentially the foregoing options, Mr. Collier expressly requested to withdraw from the plea agreement. As such, the judgment of the Trial 24 25 Court should be reversed and vacated, and Mr. Collier should be permitted to withdraw his plea. CONCLUSION For all of the foregoing reasons, it is respectfully submitted that the Orders appealed from should be reversed as set forth above. Dated: New York, New York March 11, 2013 CLAUDE CASTRO & ASSOCIATES PLLC By: _______________________________ Claude Castro, Esq. Attorneys for Appellant 444 Madison Avenue, Suite 500 New York, New York 10022 (212) 810-2710