The People, Respondent,v.Andre Collier, Appellant.

Brief

N.Y.November 13, 2013

Appellate 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. >> >> REPLY 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: May 13, 2013 Of Counsel: Claude Castro D. Paul Martin TABLE OF CONTENTS Page PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 POINT I THE TRIAL COURT AND THE THIRD DEPT. ERRED BY DENYING APPELLANT’S REQUEST TO WITHDRAW HIS PLEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Mr. Collier Was Entitled to Withdraw His Plea Because the Unfulfilled Promise Could Not be Honored . . . . . . . . . . . . . . . . . . . . . . . . . 4 Mr. Collier Was Entitled to Withdraw His Guilty Plea Because the Plea Agreement and Sentence Were Illegal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Sentence Must Be Vacated In Its Entirety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The Third Dept. Properly Held that Appellant’s Motion to Vacate and Set Aside was Not Barred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 i ii TABLE OF AUTHORITIES Page Cases People v. Armstead,, 52 A.D.2d 966 (3d Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. Bruning, 45 A.D.3d 1179 (3d Dept. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. Cameron, 193 A.D.2d 752, 597 N.Y.S.2d 724(2d Dept. 1993) aff'd 83 N.Y.2d 838, 611 N.Y.S.2d 499 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 8, 11 People v. Ciccarelli, 32 A.D.3d 1175 (4th Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v. DePerno, 92 A.D.3d 1089 (3d Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Donnelly, 80 A.D.3d 797 (3d Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. Figueroa, 82 A.D.3d 1006 (2d Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Francabandera, 33 N.Y.2d 429 n2 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Kinch, 15 A.D.3d 780 (3d Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. Lynn, 28 N.Y.2d 196 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Martin, 278 A.D.2d 743 (3d Dept. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 People v. Ryan, 83 A.D.3d 1128 (3d Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 iii People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 People v. Sheils, 288 A.D.2d 504 (3d Dept. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v. Squitieri, 60 A.D.3d 1208(3d Dept. 2009), lv denied 13 N.Y.3d 839 (2009) . . . . . . . . . . . . 11 People v. Taveras, 10 N.Y.3d 227 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Torres, 45 N.Y.2d 751, 408 N.Y.S.2d 487 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 People v. Tubbs, 157 A.D.2d 915(3d Dept. 1990), lv denied 76 N.Y.2d 744 (1990) . . . . . . . . . . . . 11 People v. Warren, 74 A.D.3d 1639 (3d Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Santobello v. New York, 404 U.S. 257 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 Statutes CPL § 225.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 CPL § 225.10(2a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 CPL § 225.10(2b, c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 CPL § 440.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CPL § 440.10(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 17 CPL § 440.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15, 16, 17 CPL § 440.20(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Penal Law § 70.04(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 PRELIMINARY STATEMENT This reply 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, and the term promised on the fifth count of Robbery in the First Degree (i.e. five years) was a promise that could not be fulfilled. Further, the Trial Court and the Third Dept. erred by resentencing and affirming that resentencing of Mr. Collier, after a denial of his request to withdraw his plea, to a sentence greater than that agreed to in the plea agreement, thereby creating a new plea agreement that was involuntary and unconstitutional. 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 ARGUMENT POINT I THE TRIAL COURT AND THE THIRD DEPT. ERRED BY DENYING APPELLANT’S REQUEST TO WITHDRAW HIS PLEA Mr. Collier Was Entitled to Withdraw His Plea Because the Unfulfilled Promise Could Not be Honored It is respectfully submitted that, contrary to the Respondent’s argument that Mr. Collier received the “benefit of his bargain” upon resentencing, Mr. Collier was entitled to withdraw his plea because the unfulfilled promise (i.e. a five year term on count five as a second felony offender) could not be honored due to its illegality. As the Supreme Court of the United States established in Santobello v. New York and this Court subsequently applied in People v. Selikoff, “the failure or inability to fulfill a promise requires either that the plea of guilty be vacated or the promise fulfilled”. See People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 634 (1974) discussing Santobello v. New York, 404 U.S. 257 (1971). In fact, this Court unequivocally stated in Selikoff, “Of course, a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored”. See Selikoff at 636. 4 As this Court described Santobello in Selikoff, “the Supreme Court held that the failure of a prosecutor to honor his off-the-record promise to make no sentence recommendation rendered invalid the guilty plea induced by the promise”. See Selikoff at 634. There, the Supreme Court “left it to the discretion of the State courts whether either to allow defendant to withdraw his plea, or to fulfill the aborted promise by vacating the sentence and remanding the proceedings for resentence before a different Judge, without the prosecutor’s sentence recommendation”. See Id. Significantly, in Santobello, the promise made to the defendant could have been kept “because the prosecutor has the power” not to recommend a prison sentence, but the promise was not kept. See Selikoff at 636. Thus, in Santobello the courts had the option of allowing the defendant to withdraw his plea or to resentence the defendant in accordance with the promise made. Here, the unfulfilled promise made to Mr. Collier (i.e. a five year term on count five as a second felony offender) cannot be honored as it is unlawful. As such, the only option in this case is to permit Mr. Collier to withdraw his plea as he requested. In People v. Torres, this Court directed the trial court to permit the defendant to withdraw the guilty plea in the event that the trial court decided not to honor the promise made: 5 “At that time, the court should reconsider the decision to deny defendant youthful offender treatment in light of the prior promise. Should the sentencing Judge nonetheless adhere to the decision not to adjudicate defendant a youthful offender, the court must then provide defendant with an opportunity to withdraw his guilty plea and put the People to their proof at a trial.” See People v. Torres, 45 N.Y.2d 751, 408 N.Y.S.2d 487, 489 (1978). Unlike in Torres, the unfulfilled promise made to Mr. Collier (i.e. a five year term on count five as a second felony offender) cannot be honored due to its illegality. Thus, the option to fulfill the promise is unavailable and Mr. Collier must be given the opportunity to withdraw his plea. Further, as the Record demonstrates, Mr. Collier did in fact request that the Trial Court permit him to withdraw his plea, a request which was denied moments before the Trial Court resentenced Mr. Collier to a greater sentence than was agreed upon in the plea agreement. Based on the foregoing, it is respectfully submitted that the Trial Court and the Third Dept. erred as a matter of fact and law by denying Mr. Collier’s request to withdraw his guilty plea. 6 Mr. Collier Was Entitled to Withdraw His Guilty Plea Because the Plea Agreement and Sentence Were Illegal It is respectfully submitted that, as the Third Dept. properly held in the First Order, Mr. Collier’s five year sentence on count five was illegal because the agreed upon sentence of five years was less than the minimum required by law (i.e. the minimum sentence for a second violent felony offender convicted of a class B felony is 10 years). 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) The Third Dept. then 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 respectfully submitted that the proper procedure for the Trial Court upon remittance was to give both parties the opportunity to withdraw from the original plea agreement. In People v. Cameron, which also involved an illegal sentence, this Court affirmed the Appellate Division, Second Department’s (Second Dept.) holding that “the matter not only must be remitted for resentencing, but both parties must be given an opportunity to withdraw from the original plea agreement”. See People v. Cameron, 193 A.D.2d 752, 597 N.Y.S.2d 724, 725 7 (2d Dept. 1993) aff’d 83 N.Y.2d 838, 611 N.Y.S.2d 499 (1994). Significantly, this Court further clarified the foregoing holding of the Second Dept. in Cameron: “On appeal to the Appellant Division, that Court reversed the sentence and remitted the case to Supreme Court for resentencing or, at the election of either the defendant or the People, a withdrawal of defendant’s guilty plea.... There should be an affirmance. Because neither the sentence pursuant to the plea agreement nor the sentence actually imposed was authorized by law for the crime of which defendant was convicted, the Appellant Division properly ruled that the sentence must be reversed and the case remitted for resentencing with the opportunity for both parties to withdraw from the plea agreement.” See People v. Cameron, 83 N.Y.2d 838, 839 (1994). As this Court made clear, in the event that an illegal sentence has been imposed, the defendant must be given the opportunity to withdraw his guilty plea. In fact, Cameron has been followed nearly uniformly by the Courts of this State. See People v. DePerno, 92 A.D.3d 1089, 1090 (3d Dept. 2012) (holding “As the agreed-upon sentences cannot legally be imposed, we remit to County Court for resentencing in accordance with the relevant statutes, with the opportunity for either party to withdraw from the plea agreement”); People v. Figueroa, 82 A.D.3d 1006 (2d Dept. 2011) (holding “the sentence imposed must be vacated, and the matter remitted to the County Court, Dutchess County, 8 to afford the defendant the opportunity to accept the sentence that was actually imposed, or permit him to withdraw his plea of guilty”). Significantly, in People v. Ryan, the Third Dept. held that the defendant must be given the opportunity to accept being resentenced in accordance with applicable law or to withdraw his guilty plea: “As defendant cannot receive the sentence contemplated by the plea agreement, due to that sentence being illegal, upon remittal County Court must either secure defendant’s agreement to be resentenced in compliance with the statute or afford him the opportunity to withdraw his plea.” People v. Ryan, 83 A.D.3d 1128, 1130 (3d Dept. 2011). As such, it is respectfully submitted that, due to the illegality of Mr. Collier’s plea agreement and sentence, Mr. Collier is entitled to a choice of being resentenced “in compliance with the statute” or withdrawing the guilty plea. Here, the Record before this Court makes it perfectly clear 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) Further, Mr. Collier’s request to withdraw his plea should have been granted because his guilty plea was conditioned on the illegal 5 year sentence on count five. 9 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 the opportunity to withdraw his plea, just as he requested to do prior to resentencing. 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). 10 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 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. 11 The Sentence Must Be Vacated In Its Entirety It is respectfully submitted that in the First Order 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) Significantly, this “part and parcel” rule has been applied in the Third and Fourth Departments. See People v. Sheils, 288 A.D.2d 504, 505 (3d Dept. 2001) (holding “Inasmuch as 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”); see also People v. Ciccarelli, 32 A.D.3d 1175, 1176 (4th Dept. 2006). Further, despite the fact that the five counts of Robbery in the First Degree arose from separate acts and occurrences, as the Respondent is quick to point out in the answering brief, it is respectfully submitted that the illegal sentence on count five was part and parcel of the entire plea agreement. The 25 year sentence on count one and the 5 year sentence on count five were both essential parts of the agreed-upon plea agreement and were negotiated together, not separately. Mr. Collier agreed to accept a 25 year sentence on count one 12 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. Based on the foregoing, it is respectfully submitted that the “part and parcel” rule is the most fair and pragmatic approach due to the fact that plea negotiations of multiple counts are done concurrently and as a package deal. Thus, if one aspect of the plea agreement is illegal there is no legitimate and enforceable agreement. As such, it is respectfully submitted that the Trial Court and the Third Dept. erred by not permitting Mr. Collier to withdraw his plea agreement. 13 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. Significantly, as the Respondent states in its answering brief, “issues ‘stemming from a guilty plea which involve the legality of the sentence or the voluntariness of the plea itself are always appealable’” (Respondent’s Brief, pg. 7) citing People v. Francabandera, 33 N.Y.2d 429, 434 n2 (1974); see also People v. Lynn, 28 N.Y.2d 196, 203 (1971) (holding “all residual appealable issues consistent with a plea of guilty, e.g., the voluntariness of the plea itself, as well as the legality of sentence, may .... be reviewed collaterally by way of postconviction relief”). Further, 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 14 failure to raise such ground or issue upon an appeal actually perfected by him”. See CPL § 440.10 (2)(c). However, 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 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). Significantly, 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. 15 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 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 16 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. 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. 17 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) Based on all of the foregoing, it is respectfully submitted that the Trial Court and the Third Dept. erred by not permitting Mr. Collier to withdraw his plea. 18 19 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 May 13, 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