The People, Respondent,v.Karen M. Caza, Appellant.

Brief

N.Y.November 17, 2014

P.O. Box 4392, 82 GLENWOOD AVE., QUEENSBURY, NY 12804 mmcguinnesslaw@gmail.com • mmcguinnesslaw.com mobile: 518-538-2905 •fax: 518-636-0006 Hon. Andrew W. Klein Chief Clerk, Court of Appeals 20 Eagle Street Albany, NY 12207-1095 RE: People v. Karen Caza APL-2014-00139 Dear Mr. Klein: July 12, 2014 The narrow question presented for the Court's review in this case is whether the Essex County Court erred as a matter of law when it sentenced Ms. Caza to consecutive periods of incarceration, where it had conditionally committed to run any sentences of incarceration concurrently with one another and without first giving her the opportunity to withdraw her guilty pleas. On February 3, 2012, Ms. Caza pleaded guilty to two separate counts of Attempted Forgery in the Second Degree in satisfaction of two separate indictments. The plea agreement contained no guarantee as to any particular sentence for each count. The Court, however, did promise Ms. Caza that if it were to sentence her to terms of incarceration, it would run any such sentences concurrently with one another so long as she followed certain conditions. The only 1 condition imposed by the Court that is relevant to this appeal was that she was required to cooperate with the Probation Department in the formation of the pre-sentence report. At the outset of sentencing on April 16, 2012, the Court erroneously stated, without objection from the People or Defense Counsel, that there was no conditional commitment in regards to sentencing. Thereafter, the Court proceeded to reprimand Ms. Caza for failing to cooperate with the Probation Department. It is clear from the sentencing proceeding, however, that the Court's primary concern was not that Ms. Caza hadn't appeared for her interview or answered the questions asked of her by the Probation Department, but rather that the answers she gave were apparently untruthful because they contradicted the statements she made during her plea allocution. This was in spite of the fact that the Court never admonished Ms. Caza at the time of her plea that she had to give answers during the pre-sentence report interview that were truthful or consistent with her allocution. After hearing sentencing arguments from the People and Defense Counsel, immediately prior to the conclusion of the hearing and without objection, the Court imposed consecutive indeterminate sentences of one to three years on each count. The Court did not afford Ms. Caza the opportunity to withdraw her guilty pleas before it imposed the consecutive sentences. On her direct appeal to the Third Department, Ms. Caza argued that County Court erroneously imposed the sentences without affording her the opportunity to withdraw her pleas because the Court never admonished her that her answers had to be truthful and consistent with her allocution. Although the issue was concededly unpreserved, she argued that the Court should exercise its interest of justice jurisdiction to address the merits of the claim. In a three to two decision, however, the Court affirmed County Court's imposition of consecutive sentences and found that Ms. Caza violated the condition imposed by County Court because she "repeatedly 2 attempted to avoid being interviewed by the Probation Department and, during the interview itself, gave evasive and contradictory responses to questions." JURISDICTION Initially, the Court here does have subject matter jurisdiction to address the claim because the Third Department's Memorandum and Order of March 27, 2014 affirmed County Court's imposition of consecutive sentences and was adverse to Ms. Caza within the meaning of CPL § 450.90(1). Further, despite not being preserved at the trial level, the issue presents a question of law that is reviewable by this Court for two primary reasons. First, it is apparent from the majority decision that the Third Department accepted County Court's determination that Ms. Caza failed to honestly answer questions during her pre-sentence report interview and that her dishonesty constituted a violation of the condition imposed. While the Court also referenced that she attempted to avoid the interview altogether, a review of the sentencing proceeding makes clear that County Court based its sentence on her apparent dishonesty. Further, the pre-sentence report establishes that she appeared for her scheduled interview and answered the questions asked of her. Plainly then, the question for the Court here is whether Ms. Caza's apparent dishonesty in the interview constituted a violation of the condition that she cooperate with the Probation Department. This involves no question of fact and is a purely legal determination. See People v. Hicks, 98 N.Y.2d 185, 187, 189 (2002). Second, while it is true that an issue needs to be preserved at the trial court level in order to constitute a question of law reviewable by the Court, CPL§ 470.05(2), the Court has long held that preservation is unnecessary in particular circumstances. For instance, the Court has found preservation unnecessary where the issue involves the defendant's right to be sentenced in accordance with the law. See e.g., People v. 3 Fuller, 57 N.Y.2d 152, 156 (1982). In Fuller, the Court found that preservation was not a barrier to review where the trial court had delegated the authority of determining the restitution amount to the Probation Department because such delegation violated the mandate of then newly enacted Penal Law§ 60.27. Id. The Court has in recent history extended the preservation exception to questions involving a defendant's right to be informed of the full consequences of their guilty plea and to obtain the full benefit of their plea bargain. For example, in People v. Louree, the Court held that the absence of a post-allocution motion did not preclude a defendant from challenging a plea on appeal where the trial court did not inform the defendant of the applicable term of post-release supervision at the time of the plea. 8 N.Y.3d 541, 545-46 (2007). The Court found preservation unnecessary because the issue involved a defendant's right to know a direct consequence of their guilty plea and necessarily the knowing and voluntary nature of the plea. Id. While the Court has subsequently narrowed a defendant's ability to challenge a plea as involuntary on those grounds due to lack of preservation, it has done so only where the defendant was advised of the applicable term of post-release supervision at the outset of sentencing, thereby placing the defendant on notice of the issue and giving him or her the opportunity to object or move to withdraw their plea. See People v. Murray, 15 N.Y.3d 725, 726-727 (2010). The Court has refused to allow lack preservation to preclude review of those claims, however, where the defendant doesn't learn of the post-release supervision term until the close of sentencing when it was actually imposed and has no opportunity to raise an objection. See People v. McAlpin, 17 N.Y.3d 936, 938 (2011). Here, preservation is unnecessary because Ms. Caza argues that County Court's imposition of consecutive sentences, without first giving her the opportunity to withdraw her 4 guilty pleas, deprived her of the benefit of her plea bargain and rendered her pleas involuntary. Although the case here does not involve post-release supervision, the issue raised still implicates the concerns present in Louree and McAlpin because the Court did not specifically admonish Ms. Caza that her failure to provide truthful answers during her pre-sentence report interview could result in additional periods of incarceration. She was not, therefore, adequately informed of a direct consequence of her guilty pleas which renders her pleas involuntary and preservation unnecessary. Further, the circumstances present in Murray and its progeny that would require preservation are not applicable here because the Court made no mention of imposing consecutive sentences until it had actually imposed the sentences at the close of sentencing. Ms. Caza, therefore, was afforded no meaningful opportunity to object or move to withdraw her pleas. She should not be precluded from making her argument despite this failure because to do so would be unreasonable and manifestly unfair. For all of the foregoing reasons, the Court has jurisdiction to entertain the instant appeal as it presents a reviewable question of law. THE MERITS As to the merits of her claim, it is well recognized that as part of a plea agreement, the trial court may condition the agreed upon sentence on the defendant's compliance with certain conditions so long as they don't violate public policy. People v. Avery, 85 N.Y.2d 503, 507 (1995). If a defendant violates a condition imposed by the court to receive the bargained for sentence, the court may impose an enhanced sentence so long as it advised the defendant of the possibility of the enhanced sentence ifhe or she were to violate the condition. People v. Figgins, 87 N.Y.2d 840, 841 (1995). Under those circumstances, the court would not be required to allow the defendant to withdraw their guilty plea before imposing the enhanced sentence because the 5 defendant was placed on notice of what was required to receive the agreed-upon sentence. 85 N.Y.2d at 508. In order for a condition to be valid, however, and its concomitant violation to form the basis of an enhanced sentence, the condition cannot be subjective and must be specific enough to place a defendant on notice of what is required to receive the agreed upon sentence. See Hicks, 98 N. Y .2d at 187, 189. For the same reasons, the violation of a condition imposed on a defendant after the plea proceeding cannot form the basis of an enhanced sentence. See People v. Jenkins, 11 N.Y.3d 282, 288 (2008). Where the defendant isn't properly placed on notice of what is required to receive the bargained for sentence, the court must first afford the defendant an opportunity to withdraw their guilty plea before imposing an enhanced sentence. This is based on the longstanding and fundamental principle oflaw that "a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored." People v. Selikoff, 35 N.Y.2d 227, 241 (1974). More recently, the Court reaffirmed this principle in People v. Pichardo where it held that when a plea is induced by a specific sentencing promise that subsequently cannot be kept, the court is required to allow the defendant the opportunity to withdraw their plea and face the indictment. 1 N.Y.3d 126, 129 (2003). In this case, County Court should not have imposed consecutive sentences of incarceration without first giving Ms. Caza the opportunity to withdraw her guilty pleas because despite not guaranteeing any particular sentence prior to her pleas, the Court conditionally committed to run any sentences of incarceration concurrently. As relevant here, the Court conditioned its sentencing commitment on her cooperation with the Probation Department in the formation of its pre-sentence report. Her plea, therefore, was induced by the Court's promise to impose concurrent sentences as long as she cooperated. The Court, however, did not elaborate on what it meant by "cooperate" and at no point did it admonish Ms. Caza that it required her to be truthful or give responses that were consistent with her plea allocution during the pre-sentence report interview. Manifestly, the term cooperate is broad and was not sufficient to place Ms. Caza on notice as to exactly what the Court wanted her to do, other than make herself available for the pre-sentence report interview, to received the benefit of her bargain. In all practical respects, what the Court did here was impose an additional condition on Ms. Caza after her guilty pleas. It was not permitted to do so, however, and the use of the apparent violation of that condition to enhance Ms. Caza's sentence violated her legitimate sentencing expectations and was erroneous. Further, Ms. Caza did comply with the condition actually imposed on her because she did cooperate with the Probation Department as the pre-sentence report plainly states that once contact with her was established, she "appeared as scheduled" for her interview and answered the questions asked of her. Without giving any clarification or further direction as to what was meant by its admonishment, County Court did not sufficiently place Ms. Caza on notice that giving honest or consistent answers during the interview was a prerequisite to receiving the benefit of her plea bargain. Having not done so, the Court's dissatisfaction with her responses was not controlling. Succinctly, if the Court wanted to condition its sentencing commitment on Ms. Caza giving honest or consistent, it needed to explicitly inform her of that at the time of her guilty pleas. In the alternative, the Court could have simply offered her the opportunity to withdraw her pleas prior to imposing the enhanced sentence. By not doing either of these things, however, the Court violated its conditional commitment and deprived Ms. Caza of the benefit of her plea bargain. Given these circumstances, the only appropriate remedy is to vacate her sentences and remit the matter to afford her the opportunity to withdraw her guilty pleas. 7 Thank you. 8