The People, Respondent,v.Andre Collier, Appellant.BriefN.Y.November 13, 2013To Be Argued By: Time Requested: STEVEN M. SHARP Ten (10) minutes COURT OF APPEALS STATE OF NEW YORK _______________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ANDRE COLLIER Defendant-Appellant. _______________ ________________________________________________________________________ RESPONDENT’S BRIEF ________________________________________________________________________ P. DAVID SOARES ALBANY COUNTY DISTRICT ATTORNEY ATTORNEY FOR RESPONDENT ALBANY COUNTY JUDICIAL CENTER 6 LODGE STREET ALBANY, NEW YORK 12207 TEL. (518) 487-5460 STEVEN M. SHARP DATE COMPLETED: Of Counsel APRIL 26, 2013 ___________________________________________________________________________________________ i TABLE OF CONTENTS Page TABLE OF CONTENTS (APPENDIX) ..................................................................................... ii TABLE OF AUTHORITIES ...................................................................................................... iii PRELIMINARY STATEMENT ................................................................................................. 1 QUESTION PRESENTED .......................................................................................................... 2 STATEMENT OF FACTS .......................................................................................................... 3 ARGUMENT ............................................................................................................................... 6 I. SINCE DEFENDANT RECEIVED THE FULL BENEFIT OF HIS BARGAIN, HIS GUILTY PLEA SHOULD NOT BE DISTURBED ................................................. 6 A. Defendant is not Entitled to Withdraw his Plea of Guilty Where he Received the Benefit of his Bargain .......................................................................................... 7 B. If Defendant did not Receive the Benefit of his Bargain, Remedies Other than Vacatur of the Entire Plea Agreement are Available ............................................ 15 C. Defendant’s Motion is Procedurally Barred .......................................................... 17 CONCLUSION ........................................................................................................................... 19 ii TABLE OF AUTHORITIES CASES Page(s) FEDERAL CASES Gammarano v United States, 732 F2d 273 [2d Cir 1984] ..................................................................................................9 Paradiso v United States, 689 F2d 28 [2d Cir 1982] ........................................................................................9, 10, 13 Santobello v New York, 404 US 257 [1971] ........................................................................................................8, 12 NEW YORK CASES People v Cameron, 83 NY2d 838 [1994] ...........................................................................................................7 People v Cataldo, 39 NY2d 578 [1976] .....................................................................................................9, 13 People v Catu, 4 NY2d 242 [2005] ...........................................................................................................14 People v Ciccarelli, 32 AD3d 1175 [4th Dept 2006] ........................................................................................15 People v Collier, 52 AD2d 1121 [3d Dept 2008] .....................................................................................4, 17 People v Collier, 91 AD3d 987 [3d Dept 2012] .............................................................................................5 People v Cornell, 16 NY3d 801 [2011] ...........................................................................................................7 People v Dean, 8 NY3d 929 [2007] ...........................................................................................................16 People v DeValle, 94 NY2d 870 [2000] ...........................................................................................................7 People v Esposito, 32 NY2d 921 [1973] ...........................................................................................................9 iii TABLE OF AUTHORITIES(Cont.) CASES Page(s) People v Fiumefreddo, 82 NY2d 536 [1993] ...........................................................................................................6 People v Ford, 86 NY2d 397 [1995] ...........................................................................................................7 People v Francabandera, 33 NY2d 429 [1974] ...........................................................................................................7 People v Frederick, 45 NY2d 520 [1978] ...........................................................................................................6 People v Hill, 9 NY3d 189 [2007] ...........................................................................................................15 People v Laureano, 87 NY2d 640 [1996] .........................................................................................................16 People v Lopez, 28 NY2d 148 [1971] ...........................................................................................................7 People v Maliszewski, 13 NY3d 756 [2009] ...........................................................................................................7 People v McConnell, 49 NY2d 340 [1980] ...........................................................................................................9 People v Miller, 42 NY2d 946 [1977] ...........................................................................................................6 People v Moore, 61 NY2d 575 [1984] ...........................................................................................................7 People v Pichardo, 1 NY3d 126 [2003] ...........................................................................................................14 People v Prescott, 66 NY2d 216 [1985] ...........................................................................................................6 People v Rowlands, 8 NY3d 342 [2007] ...........................................................................................................14 iv TABLE OF AUTHORITIES(Cont.) CASES Page(s) People v Seaberg, 74 NY2d 1 [1989] .........................................................................................................7, 16 People v Selikoff, 35 NY2d 227 [1974] ................................................................................................. passim People v Sellers, 222 AD2d 941 [3d Dept 1995] .........................................................................................15 People v Sheils, 288 AD2d 504 [3d Dept 2001] ...................................................................................12, 15 People v Taylor, 65 NY2d 1 [1985] ...............................................................................................................6 People v Torres, 45 NY2d 751 [1978] ...............................................................................................8, 12, 13 People v Williams, 87 NY2d 1014 [1996] .................................................................................................10, 13 1 PRELIMINARY STATEMENT By permission of the Honorable Judge Robert S. Smith, Associate Judge of the New York Court of Appeals, granted September 18, 2012, Andre Collier appeals from an order of the Appellate Division, Third Department, entered December 2, 2010, which modified and affirmed as modified a judgment of the County Court of the State of New York, Albany County (Breslin, J.), rendered August 19, 2009 and an order of the Appellate Division, Third Department, entered January 5, 2012, which affirmed a judgment of the County Court of the State of New York, Albany County (Breslin, J.), rendered January 13, 2011, convicting him of two counts of Robbery in the First Degree (Penal Law § 160.15[3]), upon a plea of guilty, and sentencing him to a determinate prison term of twenty-five years (25) for the first robbery conviction and a concurrent determinate prison term of ten years (10) for the second robbery conviction. Defendant is currently incarcerated pursuant to this judgment of conviction. 2 QUESTION PRESENTED Where the sentence promised to defendant in exchange for his guilty plea could not legally be imposed, did the sentencing court properly exercise its discretion by denying defendant’s motion to withdraw his plea and instead imposing a lawful sentence more lenient, in the aggregate, than the one that could have been imposed under the plea agreement? 3 STATEMENT OF FACTS In February of 2005, an Albany County Grand Jury handed up a five-count indictment charging defendant, Andre Collier, with five counts of Robbery in the First Degree, in violation of Section 160.15[3] of the Penal Law of the State of New York, a Class B Violent Felony (A 10-14). These charges stem from incidents wherein defendant robbed five stores (Payless Shoe Store, Cumberland Farms, Ben & Jerry’s Ice Cream, the Wine Shop and Isn’t It Sweet) by displaying a knife and stealing money from the employees of those stores (A 10-14). Plea A plea offer was placed on the record: in exchange for a plea of guilty to two counts of robbery in the first degree under the first and fifth counts of the indictment, defendant would receive a sentence of twenty-five years in prison followed by five years of post-release supervision for the first count and a sentence of five years in prison followed by five years of post-release supervision for the fifth count (A 16). Whether the five year sentence for the conviction on the fifth count would run consecutive to or concurrent with the twenty-five year sentence for the conviction on the first count, was left to County Court’s discretion, depending on the pre-sentence report (A 16). This plea offer was related to defendant and defendant understood and agreed to the offer (A 16). During the course of the colloquy, the court individually enumerated the fundamental rights defendant was waiving by accepting the plea bargain in this case. The court specifically asked defendant in open court on the record whether he understood that he was giving up his right to remain silent and not to incriminate himself, his right to go to trial, to have the People produce witnesses against him and to have his lawyer cross-examine those witnesses and his right to put the People to their burden of proving his guilt beyond a reasonable doubt to a 4 unanimous jury. Defendant replied individually to each question, acknowledging that he understood that he was giving up each of these rights. Defendant pleaded guilty to both the first and fifth counts of the indictment. Sentencing At sentencing, County Court followed the agreement outlined in the plea offer (A 20). Defendant was sentenced to consecutive prison terms of twenty-five years on the first count and five years on the fifth count, along with a five year period of post-release supervision for each conviction (A 20). Direct Appeal In 2008, defendant appealed from his plea and sentence, solely contending that the sentences imposed were harsh and excessive and should be reduced in the interest of justice (see People v Collier, 52 AD3d 1121, 1122 [3d Dept 2008] lv den 11 NY3d 786 [2008]). The Third Department upheld the conviction, holding that defendant was “precluded from challenging the sentence imposed as harsh and excessive” as a result of his waiver of appeal (see Collier, 52 AD3d at 1122). Defendant did not challenge the legality of his sentence, which would have survived his waiver of the right to appeal. Collateral Motion and Appeal Following the direct appeal, defendant sought to vacate the judgment convicting him of the crimes of robbery in the first degree and to set aside the sentence, which was denied. In 2010, defendant appealed the denial of his motion (A 3). Defendant appealed, arguing that the imposition of a five year sentence for the conviction of robbery in the first degree, was illegal (A 4). The Third Department agreed that the sentence imposed was illegal, regardless of whether defendant was considered a second felony offender or a second violent felony offender (A 4). 5 The Third Department remitted the case to County 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” (A 5). Resentencing At resentencing, defendant requested that County Court allow him to withdraw his plea (A 26). The People requested that County Court resentence defendant to a sentence that gives defendant the benefit of his sentencing bargain (A 27). Thereafter, County Court sentenced defendant to concurrent prison terms of twenty-five years and ten years, along with a five year period of post-release supervision for each conviction (A 29-30). Appeal from Resentencing On appeal, defendant argued that County Court erred in denying his request to withdraw his guilty plea and in resentencing him to a greater term of imprisonment than that agreed to under the plea agreement (see People v Collier, 91 AD3d 987, 988 [3d Dept 2012]). The Third Department found that defendant had actually received a lesser sentence because the second term of imprisonment was imposed concurrently, instead of consecutively (see Collier, 91 AD3d at 988). Since defendant received “the benefit of his bargain,” the Third Department held that County Court “was not required to allow him to withdraw his plea” (see Collier, 91 AD3d at 988). A Judge of this Court granted leave and this appeal ensued. On appeal to this Court, defendant argues that vacatur of his guilty plea is the only permissible remedy for the illegal sentence contemplated in the plea bargain. 6 POINT I SINCE DEFENDANT RECEIVED THE FULL BENEFIT OF HIS BARGAIN, HIS GUILTY PLEA SHOULD NOT BE DISTURBED Defendant contends that County Court erred by denying his request to withdraw his guilty plea and by resentencing him to a greater term of imprisonment than he agreed to under the plea agreement (Defendant’s Brief at 9). Specifically, he asserts that vacatur of his plea – not modification of his sentence – was the only permissible remedy for a plea agreement that included an illegal sentence component. To the contrary, County Court had discretion to remedy the error in the plea agreement by granting defendant the full benefit of his original bargain. The Third Department agreed, holding that defendant received a lesser sentence than the one he agreed to under the plea agreement because the resentence reduced his aggregate prison exposure from 30 to 25 years (A 7). This Court should affirm the Third Department’s holding since defendant received the full benefit of his plea bargain. Guilty pleas “represent[] a compromise or bargain struck after negotiation between the defendant and the People . . . [that] is meant to mark the end of a criminal case, not a ‘gateway’ to further litigation” (see People v Prescott, 66 NY2d 216, 219 [1985] citing People v Taylor, 65 NY2d 1, 5 [1985]). In order to “immunize plea negotiations from indiscriminate potshots,” guilty pleas must be afforded “a great measure of finality” (see People v Frederick, 45 NY2d 520, 525 [1978]), and unless a plea bargain is “unfair or inappropriate, it should become final” (see People v Miller, 42 NY2d 946, 947 [1977]). A plea of guilty is valid and will be upheld “if it was entered voluntarily, knowingly and intelligently” (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]). A plea court must inform a defendant of the “direct consequences” of his plea, including the maximum potential time he will spend in prison and under post-release supervision (see People v Cornell, 16 NY3d 801, 7 802[2011]; People v Ford, 86 NY2d 397, 403 [1995]). In addition, “an accused may waive any right which he or she enjoys,” including the right to an appeal (see People v Seaberg, 74 NY2d 1, 7-8 [1989]). Nonetheless, issues “stemming from a guilty plea which involve the legality of the sentence or the voluntariness of the plea itself are always appealable” (see People v Francabandera, 33 NY2d 429, 434 n2 [1974]; People v Lopez, 28 NY2d 148, 151-52 [1971]). Generally, where a defendant has pleaded guilty in exchange for a particular sentence, if that sentence is illegal, he is entitled to withdraw his plea of guilty (see People v Cameron, 83 NY2d 838, 840 [1994]). This Court, however, has crafted several exceptions to this general rule. For example, where the bargained-for sentence exceeds the sentence authorized by law, this Court has upheld a plea of guilty, if the sentence imposed is reduced to a legal term (see People v Moore, 61 NY2d 575 [1984]). Relatedly, where a defendant does not want to withdraw a plea, this Court has upheld a plea of guilty, even if the sentence imposed exceeds the bargained-for sentence (see People v Maliszewski, 13 NY3d 756, 757 [2009]; People v DeValle, 94 NY2d 870, 872 [2000]). Finally, this Court has upheld a guilty plea if the illegal sentence can be corrected so as to give the defendant the benefit of the bargain (see People v Selikoff, 35 NY2d 227 [1974]). A. Defendant is not Entitled to Withdraw his Plea of Guilty Where he Received the Benefit of his Bargain The ultimate sentence imposed by County Court comported with defendant’s reasonable expectations at the time of his plea. In fact, defendant received a better sentence than he originally received: instead of 30 years in prison, he received 25 years in prison. Because defendant received the benefit of the bargain, County Court properly amended defendant’s sentence. A guilty plea that is “originally voluntary” can be “rendered involuntary ab initio” if the 8 court subsequently fails to impose the sentence that was promised in exchange for the plea (see People v Torres, 45 NY2d 751, 754 [1978]). Naturally, any sentence promised in a plea bargain is “conditioned upon” the court’s ultimate determination that it is “lawful and appropriate” (see Selikoff, 35 NY2d at 238). Where a sentence promise has not been fulfilled, the court has two options: it may either vacate the plea or grant the defendant the benefit of his original bargain (see Torres, 45 NY2d at 753; Selikoff, 35 NY2d at 241; see also Santobello v New York, 404 US 257, 262-63 [1971]). The determination of whether to fulfill the promise or vacate the plea “rests in the discretion of the sentencing court” and “there is no indicated preference for one course over the other” (see Selikoff, 35 NY2d at 239). Indeed, the United States Supreme Court recognized that the choice of remedy is best left to the discretion of the sentencing court, based on its evaluation of the particular circumstances of the case (see Santobello, 404 US at 263 [“The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, . . . or whether, in view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty”]). The sentencing court may have good reason to choose specific performance over a defendant’s request to withdraw his plea. For example, where, as here, years have passed since the original plea, the People’s ability to prosecute its case is severely hampered. The passage of time makes it difficult for the People to locate witnesses, obtain their renewed cooperation and proceed to trial on the “stale indictment[]” (see Selikoff, 35 NY2d at 240 [noting that in Esposito, specific performance was ordered because “vacating the plea may well have resulted in dismissal 9 of the charges because of the difficulty, if not inability, of the prosecution to locate the witnesses necessary for trial of the then stale indictments”]). Under those circumstances, allowing a defendant to withdraw his plea would give the defendant “more than he [is] entitled” (see Selikoff, 35 NY2d at 240). For that reason, the People “can hold a defendant to an agreed sentence rather than allow vacation of the plea when it would otherwise be prejudiced” (see People v McConnell, 49 NY2d 340, 349 [1980]; People v Esposito, 32 NY2d 921, 923 [1973]). Specific performance of a plea bargain, however, does not require precise performance of the promise, so long as the defendant’s reasonable expectations are met. A defendant’s subjective view of the plea bargain is not controlling; “[c]ompliance with a plea bargain is to be tested against an objective reading of the bargain, and not against a defendant’s subjective interpretation” (see People v Cataldo, 39 NY2d 578, 580 [1976][emphasis added]; see also Paradiso v United States, 689 F2d 28, 31 [2d Cir 1982][“In determining what is reasonably due a defendant the dispositive question . . . is what the parties to the plea agreement reasonably understood to be the terms of the agreement”][emphasis added]). Thus, if the originally promised sentence cannot be imposed, the sentencing court may impose another lawful sentence that comports with the defendant’s legitimate expectations. In that regard, “the reasonable understanding and expectations of the parties, rather than technical distinctions in semantics, control the question of whether a particular sentence imposed violates a plea agreement” (see Gammarano v United States, 732 F2d 273, 276 [2d Cir 1984]). Applying these well-established principles to this case, the sentencing court’s modification of defendant’s sentence was proper. Simply put, the ultimate sentence comported with defendant’s reasonable expectations at the time of his plea. In fact, defendant received a better sentence than he expected: instead of 30 years in prison, he received an aggregate term of 10 25 years in prison. Though the court’s sentence violated the technical terms of the plea agreement by imposing a 10 year sentence on the fifth count, the concurrent nature of the sentence constitutes specific performance because it comports with defendant’s reasonable expectations at the time of the plea. Similarly, in Paradiso, the Second Circuit upheld a sentence that technically violated the plea agreement but comported with the defendant’s reasonable expectations. In that case, the defendant pleaded guilty to two indictments. He was promised a sentence of no more than 10 years in prison on the first indictment, and a concurrent sentence of no more than five years on the second indictment (see Paradiso, 689 F2d at 30). The court ultimately imposed an 8 year prison sentence on the first indictment and a consecutive sentence of two years probation on the second indictment (see Paradiso, 689 F2d at 30). Even though the court’s sentence violated the technical terms of the plea agreement by imposing consecutive sentences on the two indictments, the Second Circuit held that the defendant had no right to withdraw his plea. The court explained that the sentence comported with the defendant’s reasonable expectation that he would receive an aggregate prison term of 10 years or less. Since the defendant received an aggregate term “less severe than the maximum bargained for,” he was “in no position to complain that his expectations were frustrated” (see Paradiso, 689 F2d at 31). In a similar vein, in People v Williams, the sentencing court originally sentenced the defendant to a prison term of three and one-half to seven years. The court subsequently discovered, however, that the defendant did not qualify as a second felony offender, rendering the original sentence illegal. To remedy the error, the court modified the defendant’s sentence to a prison term of 3 and one-half to 10 and one-half years (see People v Williams, 87 NY2d 1014, 1015 [1996]). Even though the modification increased the defendant’s sentence, this Court 11 found it permissible, because the defendant had been warned at the time of his plea that he could face up to 15 years in prison (see Williams, 87 NY2d at 1015). This Court explained that the sentencing court had not increased the defendant’s sentence “beyond his legitimate expectations of what the final sentence should be” (see Williams, 87 NY2d at 1015). Significantly, defendant benefited greatly from the plea bargain. In exchange for his plea to two counts of the five count indictment, defendant was promised a sentence of no less than 25 years in prison and no more than an aggregate term of 30 years in prison. Notably, defendant was indicted for 5 counts of robbery in the first degree, stemming from robberies of five different stores over a period of two months. Hence, if convicted after trial, defendant could have received a lengthy aggregate sentence of 125 years in prison. Not surprisingly, defendant raised no complaint about the bargain either during the plea colloquy or at sentencing. Clearly then, defendant wanted the plea deal and was happy to abide by its terms. Indeed, defendant did not complain about his plea bargain until nearly five years later, when he filed his CPL 440.20 motion. The People also placed great reliance on the plea deal. Instead of proceeding to trial in a timely fashion, the People spared the five victims in this case the traumatic experience of having to testify in open court about being robbed and threatened with a knife. Based on this history, both the People and the court expected that the guilty plea was final. Thus, when the court discovered six years later that defendant’s sentence was illegal, it had an overwhelming reason to find an alternative to vacating defendant’s plea. Indeed, where six years had passed – considering the difficulty of locating witnesses and proceeding to trial on a stale indictment – it made no sense to restore defendant to his pre-plea position. Such a result would not only subvert justice, but it would punish the victims by forcing them to relive a 12 harrowing experience at a trial. To be sure, defendant did not agree to a prison term of 10 years for his conviction of the fifth count. But as Torres, Selikoff, and Santobello make clear, vacatur of defendant’s plea was not the only possible remedy for this error. Rather, the sentencing court had the option of giving defendant the benefit of his bargain. The choice of remedy rested in the discretion of the trial court (see Torres, 45 NY2d at 753; Selikoff, 35 NY2d at 239; Santobello, 404 US at 263), and under those controlling precedents, it could not possibly have been an abuse of discretion for the court to choose that remedy over vacatur. Here, the sentencing court chose the remedy of specific performance, which it had the authority to do. And, to effectuate the bargain, the court modified defendant’s sentence to a concurrent term of 10 years in prison – an undisputedly lawful sentence for a second violent felony offender convicted of a class B violent felony (see Penal Law § 70.04[3][a]). The court’s modification of defendant’s sentence was fully consistent with his plea agreement. During the plea colloquy, defendant agreed to spend 25 to 30 years in prison. Consistent with the range of the negotiated sentence, the modified sentence is 25 years in prison. In fact, the modification put defendant in a better position than he would have been if the promised sentence lawfully could have been imposed. As the Third Department stated, “defendant 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” (A 7). Thus, as the Third Department further observed, “defendant received a sentence that was better than ‘the benefit of his bargain’ upon resentencing’” (A 7; citing People v Sheils, 288 AD2d 504, 505 [3d Dept 2001] lv den 97 NY2d 733 [2002][finding no abuse of discretion where 13 the sentencing court reduced an illegally high sentence to a legally permissible sentence]). Nonetheless, defendant argues at length that he agreed to a specific sentence of 25 years in prison for the first count and 5 years in prison for the fifth count, to run consecutively or concurrently. He contends that “aggregate prison exposure” is “irrelevant” (Defendant’s Brief at 14). To that end, he insists that he is entitled to have his personal preferences fulfilled and precise performance of the promise, even if they might seem irrational. But defendant’s arguments miss the point. Once a defendant has pleaded guilty, a reviewing court must make an objective determination of whether the ultimate sentence fulfilled the promise. The defendant’s subjective interpretation of the agreement does not control (see Cataldo, 39 NY2d at 580; Paradiso, 689 F2d at 31). Contrary to defendant’s argument, his aggregate prison exposure is essential in determining whether he received the benefit of his bargain. As County Court determined, when viewed objectively, the modified sentence comported with the plea bargain. Simply put, the modified sentence did not exceed defendant’s “legitimate expectations of what the final sentence should be” (see Williams, 87 NY2d at 1015). As this Court has stated, the People have the right to hold a defendant to his plea unless he “has not been properly treated by the State” (see Torres, 45 NY2d at 753). Here, because defendant ultimately received a “less severe” sentence than the one he “bargained for,” he was “in no position to complain that his expectations were frustrated” (see Paradiso, 689 F2d at 31). This Court’s decision in People v Rowlands does not compel a different result nor is it, as defendant contends, “on point” or “instructive” in this case (Defendant’s Brief at 20). There, this Court reaffirmed its earlier decision in People v Pichardo, holding that a defendant is entitled to withdraw his plea of guilty if the plea was induced by a promise that his sentence would be 14 concurrent with his sentence on a previous conviction where the promise could not be kept because the previous conviction was overturned (see People v Rowlands, 8 NY3d 342, 343 [2007] citing People v Pichardo, 1 NY3d 126 [2003]). In Rowlands, this Court extended the Pichardo rule, holding that the rule applies “even where the second sentence is longer, and thus the promise of concurrent sentencing does not mean that no additional time will result from the guilty plea” (see Rowlands, 8 NY3d at 344). This Court could not say that the defendant would have pleaded guilty in the murder case absent his 2 to 4 year sentence in a stolen property case because it “nullified a benefit that was expressly promised” and “was a material inducement to the guilty plea” (see Rowlands, 8 NY3d at 345). In contradistinction, this is not a case where a defendant pleaded guilty to a crime knowing that there would be no additional prison time or knowing that he would serve some additional time to a sentence imposed on a previous conviction. This is a case where defendant faced 125 years in prison if convicted of all five counts of robbery in the first degree. 1 The material inducement in this case was the removal of a 40 year sentence in exchange for a sentence between 25 and 30 years in prison. Moreover, the modification of defendant’s sentence does not nullify a benefit that was expressly promised; instead, defendant receives a benefit that was a possibility of the express promise: a concurrent sentence for the conviction of the fifth count. Defendant claims that Catu and its progeny compel vacatur of the entire plea because his “due process rights” were violated (Defendant’s Brief at 21). In Catu, the plea court failed to inform the defendant of the period of post-release supervision that would follow his term of incarceration and an undeniable component of his sentence (see People v Catu, 4 NY3d 242, 245 [2005]). This Court reversed, holding, as clarified in Hill, that the failure to inform a defendant 1 Of course, the maximum time defendant faced was 40 years in prison (see Penal Law § 70.30[1][e][iv]). 15 of the period of post-release supervision violates “the defendant’s due process rights—not the defendant’s sentencing expectations” (see People v Hill, 9 NY3d 189, 193 [2007]). Unlike the error in Catu, a plea agreement that contemplates an illegal sentence does not violate a defendant’s due process rights. Rather, the opposite is true: a plea agreement contemplating an illegal sentence violates his sentencing expectations, not his due process rights, and his sentencing expectations are not violated when modification of the sentence gives him the benefit of his bargain. In short, applying well-settled precedents, the sentencing court properly amended defendant’s sentence to reflect his legitimate expectations at the time of his plea. Defendant ultimately received a windfall and should not be heard to complain about his sentence. Moreover, the sentencing court had good reason to choose the remedy of specific performance over vacatur of the plea, because the People had relied on the plea bargain and would be severely prejudiced if the victims were required to testify, after six years, at a trial. Hence, specific performance of the bargain was an appropriate remedy, and vacating the plea would grant defendant “more than he [is] entitled” (see Selikoff, 35 NY2d at 240). B. If Defendant did not Receive the Benefit of his Bargain, Remedies Other than Vacatur of the Entire Plea Agreement are Available Defendant asserts, like the Third Department below, that where an “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” (Defendant’s Brief at 13 citing (A 4-5). But neither the Third Department nor defendant provides any basis for such an inflexible and exacting rule. 2 Rather, this Court should adopt a more prudent rule: when a defendant pleads guilty to two or more crimes, one of 2 Only the Third and Fourth Departments have held that a plea must be vacated in its entirety where an illegal sentence is imposed for a conviction, even where a legal sentence remains on another conviction (see People v Sellers, 222 AD2d 941 [3d Dept 1995]; Sheils, 288 AD2d at 504; People v Ciccarelli, 32 AD3d 1175 [4th Dept 2006]). 16 which calls for an illegal sentence, the legal sentence need not be vacated if the crimes are separate and distinct acts, such that each conviction should be viewed individually, not as part of a negotiated package. The rule set forth by the Third Department, that if a defendant pleads guilty to two counts of an indictment and is sentenced for both, and then one of the sentences is later deemed illegal, the other sentence is automatically void, unnecessarily treats every negotiated plea agreement as a package deal. But that is simply not the case. Frequently, separate and distinct crimes are presented to a Grand Jury at the same time, necessitating a combined plea agreement or an eventual severance motion. Simply because a plea proceeding encompasses a global resolution to multiple crimes does not mean that the entire sentence was part and parcel of the plea bargain. Instead, resolving separate crimes during the same plea proceeding is done for the same reasons plea bargaining is permissible: “conservation of prosecutorial and judicial resources” and “prompt resolution of criminal proceedings” (see Seaberg, 74 NY2d at 7). In this case, defendant allocuted to two separate and distinct crimes. On the first count, defendant admitted that on October 25, 2004, he stole money from an employee of Payless Shoe Store by displaying and threatening to use a knife (A 53). On the fifth count, defendant admitted that on November 18, 2004, he stole money from an employee of Isn’t It Sweet by displaying and threatening to use a knife (A 53-54). Defendant pleaded guilty to both crimes in the same plea proceeding (A 56). Without question, the crimes defendant pleaded guilty to are separate and distinct (see People v Dean, 8 NY3d 929, 930-31 [2007] citing People v Laureano, 87 NY2d 640, 644 [1996][holding that “where defendant has pleaded guilty to one or more counts alleged in the indictment, [the People] may rely on the allegations of those counts as well as the facts adduced at the allocution”]). 17 Since the crimes defendant pleaded guilty to are separate and distinct from each other, and a lawful sentence was imposed on one of the crimes, vacatur of the entire sentence is unnecessary. Although defendant pleaded guilty pursuant to a negotiated plea agreement, the two crimes he pleaded to were separate and distinct crimes and the People, defendant and County Court treated the crimes as such. The plea agreement left the decision to impose a consecutive sentence in the discretion of the sentencing court and County Court imposed a separate and distinct sentence for each of the two crimes he pleaded guilty to, with the sentences to run consecutively. Moreover, defendant receives the benefit of his guilty plea to first degree robbery because he was sentenced to 25 years as he agreed. As a result, the two convictions for separate and distinct robberies were not part of a negotiated package such that vacating one conviction requires vacatur of the entire plea agreement. Instead, based on the illegal sentence under the plea agreement, defendant is entitled only to vacatur of his conviction on the fifth count of the indictment, leaving the lawfully imposed sentence for his conviction on the first count of the indictment intact. Thus, defendant does not have a right to withdraw his guilty plea to the first count of the indictment. C. Defendant’s Motion is Procedurally Barred Undisputedly, though sufficient facts appear on the record of the proceedings, defendant omitted the claim that his sentence was illegal on direct appeal (see Collier, 52 AD3d at 1122), and then raised the issue in a CPL article 440.20 motion. Contrary to the Third Department’s holding, defendant’s claim should have been raised on direct appeal and because it was not, is barred. In sum, defendant pleaded guilty to two counts of robbery in the first degree in full satisfaction of a five count indictment. In exchange, defendant received an agreed upon sentence 18 of 25 to 30 years in prison instead of the 125 years he faced if convicted of each count in the indictment. After discovering that part of defendant’s sentence was illegal, the sentencing court modified defendant’s sentence in a way that comported with his understanding at the time of the plea. In fact, the court’s modification gave defendant a lesser sentence than could have been imposed as contemplated in the plea agreement. Vacating defendant’s plea would elevate form over substance and grant him “more than he [is] entitled” (see Selikoff, 35 NY2d at 240). Accordingly, defendant’s conviction and sentence, as modified, should be affirmed. 19 CONCLUSION THE JUDGMENT OF CONVICTION SHOULD, IN ALL RESPECTS, BE AFFIRMED. RESPECTFULLY SUBMITTED, P. DAVID SOARES ALBANY COUNTY DISTRICT ATTORNEY ATTORNEY FOR RESPONDENT ALBANY COUNTY JUDICIAL CENTER 6 LODGE STREET ALBANY, NEW YORK 12207 TEL. (518) 487-5460 Dated: April 26, 2013 By:_______________________ STEVEN M. SHARP Of Counsel