The People, Respondent,v.William Monroe, Appellant.BriefN.Y.February 7, 2013To be argued by CLAUDIA S. TRUPP (15 Minutes) teourt of Rppeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - WILLIAM MONROE, Defendant-Appellant. BRIEF FOR DEFENDANT -APPELLANT CLAUDIA S. TRUPP Of Counsel July 2012 Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 74 Trinity Place New York, NY 10006 TEL (212) 577-2523 FAX (212) 577-2535 TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................... 11 PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1 QUESTION PRESENTED ............................................ 2 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2 STATEMENT OF FACTS ............................................. 5 The 2004 and 2005 B Drug Felonies ................................ 5 The 2007 Plea and Sentence in the Conspiracy Case . . . . . . . . . . . . . . . . . . .. 5 The April 2010 Drug Law Reform Act Re-sentencing . . . . . . . . . . . . . . . . . .. 7 The c.P.L. §440.10 Motion To Vacate The Conspiracy Conviction ........ 8 The Appeal To the Appellate Division ............................... 9 ARGUMENT ....................................................... 11 POINT APPELLANT'S CONSPIRACY PLEA MUST BE VACATED BECAUSE IT WAS INDUCED BY A PROMISE THAT HIS 6-TO-12 YEAR SENTENCE WOULD RUN CONCURRENTLY WITH HIS EARLIER DRUG SENTENCES WHICH HAVE SINCE BEEN VACATED AND REDUCED. U.S. CONST., AMEND. XIV; N.Y. CONST. ART. I, §6; PEOPLE V. ROWLAND, 8 N.Y.3D 342 (2007); PEOPLE V. PICHARDO, 1 N.Y.3D 126 (2003). . . . . . . . . . . . . . . . . . . . .. 11 CONCLUSION ..................................................... 18 STATEMENT PURSUANT TO RULE 5531 ............................ i-A PRINTING SPECIFICATIONS STATEMENT ......................... 2-A 1 TABLE OF AUTHORITIES FEDERAL CASES Boykin v. Alabama, 395 U.S. 238 (1969) .................................. 17 Brady v. United States, 397 U.S. 742 (1970) ............................... 17 Santobello v. New York, 404 U.S. 257 (1971) ............................ " 12 STATE CASES People v. Boston, 75 N.Y.2d 585 (1990) .................................. 13 People v. Clark, 45 N.Y.2d 432 (1978) .................................. " 13 People v. Dais, 19 N.Y.3d 335 (2012) .................................... 16 People v. Delgado, 50 A.D.3d 915 (2d Dept. 2008) ......................... 15 People v. Fuggazatto, 62 N.Y.2d 862 (1984) ............................. " 13 People v. Harris, 61 N .Y.2d 9 (1983) .................................... 16 People v. Monroe, 89 A.D.3d 429 (1st Dept. 2011); (A. 1). .................... 1 People v. Nixon, 21 N.Y.2d 338 (1967), cert. denied, 393 U.S. 1067 (1969) .... " 17 People v. Pichardo, 1 N.Y.3d 126 (2003) . . . . . . . . . . . . . . . . . . . . . . . .. 4, 8, 9, 11, 12 People v. Rogers, 48 N.Y.2d 167 (1979) .................................. 13 People v. Rowland, 8 N.Y.3d 342 (2007) . . . . . . . . . . . . . . . .. 3,4, 8, 9, 11, 12, 13, 15 People v. Taylor, 80 N.Y.2d 1 (1992) ..................................... 13 11 STATUTES & CONSTITUTIONS U.S. CONST., AMEND. XIV; N.Y. CONST. ART. I, §6 . . . . . . . . . . . . . . . . . . .. 11 N.Y. Penal Law §105.15 ................................................ 5 N.Y. Penal Law §220.16[1] .............................................. 5 N.Y. Penal Law §220.39 ................................................ 5 N.Y. Penal Law §220.44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5 c.P.L. §440.10 ............................................. 1, 8, 9, 12, 17 111 COURT OF APPEALS STATE OF NEW YORK: ------------------------------------------------------------------------}C THE PEOPLE OF THE STATE OF NEW YORI<, Respondent, -against- WILLIAM MONROE, Defendant-Appellant. ------------------------------------------------------------------------}C PRELIMINARY STATEMENT By permission of the Honorable Robert S. Smith, Associate Judge of the Court of Appeals, granted May 24, 2012, William Monroe appeals from an order of the Supreme Court, Appellate Division, First Department, entered November 1, 2011. People v. Monroe, 89 A.D. 3d 429 (1st Dept. 2011); (A. 1).1 That order afflrmed, with opinion, an order of Supreme Court, New York County, entered October 15, 2010, which denied Mr. Monroe's motion to vacate, pursuant to c.P.L. §440.10, a judgment of conviction, rendered September 27,2007, convicting him of conspiracy in the second degree (penal Law §105.15) and sentencing him to 6 to 12 years' imprisonment. lNumbers preceded by "A." refer to pages in Defendant-Appellant's appendix. 1 Mr. Monroe now argues that he was entided to vacatur of his conspiracy plea because it was premised on a promise of concurrent time with drug sentences since vacated pursuant to DLRA 3. As a result, Mr. Monroe did not get the full benefit of his plea bargain and the conspiracy judgment should be vacated. On June 26, 2012, this Court assigned Robert S. Dean, Center for Appellate Litigation, as counsel. Mr. Monroe has not moved for a stay of execution of sentence pending appeal. QUESTION PRESENTED Whether Mr. Monroe's conspiracy plea must be vacated because it was induced by a promise that his 6-to-12 year sentence would run concurrendy with his earlier drug sentences that have since been vacated and reduced ? SUMMARY OF ARGUMENT In August 2007, William Monroe pleaded guilty to conspiracy in the second degree (penal Law §105.15), a class B felony, to cover a multi-count indictment which included numerous B-level drug felonies CA. 5). Mr. Monroe had previously pleaded guilty to two class B drug offenses for which he had received concurrent terms of 4 1/2_ to-9 years' imprisonment. Prior to accepting the conspiracy plea, Mr. Monroe specifically asked his attorney to clarify that the sentence would run concurrendy with the earlier drug sentences which he had already begun serving at the time of the plea 2 proceedings. The court explicitly promised that the 6-to-12 year sentence on the conspiracy charge would run concurrently with the drug sentences. The court additionally set forth that the 6-to-12 year sentence would result in "an additional year and a half in effect before parole" (A. 43). Consistent with the promise, the court imposed the 6-to-12 year sentence. In 2009 Mr. Monroe successfully moved pursuant to DLRA 3 for resentencing on the B drug felonies (the 6-to-12 year conspiracy sentence was meant to run concurrently with these indeterminate sentences) and was re-sentenced to concurrent, determinate terms of 3 years' imprisonment, to be followed by 2 years' post-release supervtslOn. Mr. Monroe then moved to vacate his second-degree conspiracy conviction, arguing that his plea was unknowing because it was induced by the promise of concurrent time to a sentence that had since been vacated and reduced. As such, the plea could not stand pursuant to the rule announced by the Court of Appeals in People v. Rowland, 8 N.Y.3d 342 (2007). The motion court explicitly recognized that Mr. Monroe had not received the full benefit of his plea bargain but nonetheless refused to vacate the plea as unknowing. The Appellate Division, First Department affirmed, holding that because the drug convictions were not vacated, but the resulting sentences merely reduced pursuant to DLRA 3's ameliorative sentencing provisions, there was no unfair inducement to plead 3 guilty that affected the voluntariness of Mr. Monroe's conspiracy plea. In this Court Mr. Monroe once again asks that his conspiracy plea be vacated because the reduction of his drug sentences means that the original promise cannot be fulfilled. The Court of Appeals has consistently recognized that when a defendant pleads guilty because he has been promised concurrent time with a sentence in another case and the conviction is overturned, the defendant may withdraw his plea because the promise cannot be kept. People v. Pichardo, 1 N.Y.3d 126, 129 (2003). "The critical question is whether the removal or reduction of the preexisting sentence nullified the benefit that was expressly promised and was a material inducement to the guilty plea." People v. Rowland, 8 N.Y.3d 342,345 (2007)(emphasis added). That the reduction of the preexisting sentence resulted from an ameliorative legislative enactment rather than following a successful appeal is of no import. The relevant focus is on whether there has been a change in the factual circumstances that induced the plea. Pichardo, 1 N.Y.3d at 130. Here, that is precisely what happened. The 4 Yz -to-9 year sentences that induced Mr. Monroe to accept a 6-to-12 year sentence on the conspiracy charge were reduced, altering the benefit of the bargain. As such, Mr. Monroe is entitled to get his plea back. 4 STATEMENT OF FACTS The 2004 and 2005 B Drug Felonies Mr. Monroe was convicted upon a plea of guilty, under New York County Indictment No. 5530/04, of criminal possession of a controlled substance in the third degree (p.L. §220.16[1]) on October 12,2004. He was sentenced onJanuary 9, 2006, to the minimum term of 4 Yz-to-9 years' imprisonment to run concurrently with his 4 Yz-to- 9 year sentence under New York County Indictment No. 27/05, for criminal sale of a controlled substance in the third degree (N.Y. Penal Law §220.39[1]). (A. 23, 73-74) The 2007 Plea and Sentence in the Conspiracy Case New York County Indictment 6000/06 accused Mr. Monroe of participating in a narcotics sale conspiracy in 2005. The multi-count indictment included one count of conspiracy in the second degree, three counts of criminal sale of a controlled substance in or near school grounds, three corresponding counts of criminal sale of a controlled substance in the third degree, and two counts of ,criminal possession of a controlled substance in the fourth degree (A. 5). The conspiracy, school grounds, and third-degree sale counts were all class B felonies. See N.Y. Penal Law §§105.15, 220.39, 220.44. On August 10, 2007, Mr. Monroe pleaded guilty to a single count of conspiracy in the second degree, covering the entire indictment. (A. 39-49.) During the discussion of the plea's terms, Mr. Monroe asked for additional time to speak with his lawyer (A.42-43 ). Following an off-record discussion, defense counsel 5 placed on the record that Mr. Monroe was concerned about whether the 6-to-12 year sentence was "going to run concurrent to the present sentence he is serving" pursuant to his prior convictions of class B drug felonies (A. 43). The plea court replied, ''Yes. And in addition it will run nunc pro tunc. That means the six to 12 will begin on the same day that the four and a half to nine began." (A. 43). The Court continued, "So it's an additional year and a half in effect before parole." (A. 43 (emphasis added).) Mr. Monroe replied that he understood, and the court proceeded with the allocution, ultimately accepting his plea. (A. 43-49.) At the time of his August 2007 conspiracy plea, Mr. Monroe had received no disciplinary tickets resulting in lost good time; in fact, his only tickets were for less serious Tier II offenses for which he received low-level penalties like loss of recreation. (A. 50-51.) Moreover, he was at that time successfully progressing through correctional programming as well as scoring high marks in his pre-GED classes. His teachers reported that he was "insightful and interested in the program," "demonstrate[d] good work habits," and had a "happy attitude" that was "contagious;" for his clear commitment and skill, they gave him high marks. (A. 53, 54, 55, 56.) In light of his prison record, Mr. Monroe would have legitimately expected to be released at his earliest parole eligibility date. On September 27, 2007, Mr. Monroe appeared for sentencing on the conspiracy case. At the time of sentencing the prosecution relied on "the promised sentence," 6 stating that Mr. Monroe was "promised six to twelve years concurrent with the two other indictments he is serving on an upstate sentence, and that period of time is to run back to January 9, 2006" (A. 65-66). Defense counsel agreed with the prosecution's representation of the nature of the bargained-for sentence (A. 66). The court imposed the 6-to-12 year concurrent sentence, noting that it was a "promised sentence .... There's not much room to maneuver," and additionally granted Mr. Monroe's request to mandate placement in Comprehensive Alcohol and Substance Abuse Treatment so that he could address his addiction (A. 67). In closing, the court accepted Mr. Monroe's sincere desire to assist the government with the case and added, "I would certainly not oppose any sort of early release in your case. The pre-sentence report backs that up." (A. 68) The April 2010 Drug Law Reform Act Re-sentencing With DLRA 3's enactment, Mr. Monroe received the opportunity to seek relief for his drug-related class B felony sentences pursuant to c.P.L. §440.46 (A.25). On December 11, 2009, Mr. Monroe moved for re-sentencing for the crimes of which he was convicted under Indictment numbers 5520/04 and 27/05 (A. 25). On April 16, 2010, the parties appeared before the DLRA re-sentencing court, and the judge re- sentenced Mr. Monroe on indictments 5502/04 and 27/05 to concurrent, determinate prison terms of 3 years followed by 2 years' post-release supervision. (A. 69-70). The re-sentencing order set forth that the indeterminate sentences of 4 l/Z to 9 years were 7 "vacated." (A. 70). The c.P.L. §440.10 Motion To Vacate The Conspiracy Conviction On July 7, 2010, Mr. Monroe moved to vacate the conspiracy plea, arguing that it was unknowing because it was induced by the promise of concurrent time to a sentence that had since been vacated and reduced (A. 28-31). As such, the plea violated the requirements of due process (A. 29). Specifically, Mr. Monroe argued that when a plea has been induced by a promise tethered to an earlier imposed conviction or sentence that is later vacated, New York courts have held that the later plea cannot stand. (A. 29, citing People v. Pichardo, 1 N.Y.3d 126, 129 (2003); People v. Rowland, 8 N.Y.3d 342, 344, 345 (2007) ). Mr. Monroe argued that his plea to the conspiracy charge had been induced by a promise that his sentence would run concurrently with the previously imposed 4 l/z-to- 9 year drug sentences and from the date those sentences were imposed; he would therefore have expected to serve, as the plea judge explicitly stated, only "an additional year and a half in effect before parol." (A. 29). Once resentenced to the determinate 3- year terms, however, the 6-to-12 year conspiracy sentence extended his potential earliest release date beyond the 1 Vz years promised at the plea. Since the circumstances that induced the plea had changed, his plea was unknowing (A. 29-30). The prosecution opposed vacating the judgment. According to the prosecution, the Court of Appeals holding in Pichardo, 1 N.Y.3d 126, 129 (2003) was inapplicable 8 because Mr. Monroe's drug convictions had not been vacated (A. 79-80). Therefore the cases cited to support vacating the conspiracy plea were distinguishable as they involved cases where a conviction itself, not the sentence, had been vacated. (A. 80). In an opinion flled on October 19, 2010, the c.P.L. §440.10 court denied Mr. Monroe's motion to vacate, finding: A decision to plead guilty that is influenced by a conviction that was wrongfully obtained may not be knowing. But while a plea must be knowing, it does not have to be prescient. Here the defendant made his decision based on accurate information concerning a valid conviction and a legal sentence. That a subsequent happenstance reduced somewhat the benefit he expected to receive from his plea does not render it unknowing or involuntary. (A. 6); Decision and Order dated October 19, 2010[emphasis added]. The Appeal To the Appellate Division The parties repeated their respective arguments on appeal. The Appellate Division, First Department affirmed the denial of the c.P.L. §440.10 motion, finding that although appellant believed the conspiracy conviction "effectively added one and one half to three years to the time defendant was already serving for the drug convictions"-he was not entided to any relief (A. 3). The Appellate Division rejected appellant's argument that "since the gap between the conspiracy and drug sentences has now widened, 'the removal or reduction of the preexisting sentence nullified a benefit that was expressly promised and was a material inducement to the guilty plea' (Eeople v. Rowland. 8 NY3d 342, 345 [2007]; see also People v. Pichardo, 1 NY3d 126 [2003])." (A. 3-4). 9 According to the Appellate Division: What distinguishes this case from Rowland and Pichardo is that defendant's drug convictions and sentences were never reversed on appeal or otherwise invalidated. Instead, defendant invoked the ameliorative provisions of the Drug Law Reform Act to obtain a more lenient sentence. A concurrent sentence that subsequently proves to be invalid cannot be equated with a valid concurrent sentence that is subsequently reduced as the result of a defendant's request for leniency. The former, but not the latter, may be viewed as an unfair inducement to plead guilty that affects the voluntariness of the plea (A.3-4). The Appellate Division cited no authority for this proposition. (A. 3-4). 10 ARGUMENT POINT APPELLANT'S CONSPIRACY PLEA MUST BE VACATED BECAUSE IT WAS INDUCED BY A PROMISE THAT HIS 6-TO-12 YEAR SENTENCE WOULD RUN CONCURRENTLY WITH HIS EARLIER DRUG SENTENCES WHICH HAVE SINCE BEEN VACATED AND REDUCED. U.S. CONST., AMEND. XIV; N.Y. CONST. ART. I, §6; PEOPLE V. ROWLAND, 8 N.Y.3D 342 (2007); PEOPLE V. PICHARDO, 1 N.Y.3D 126 (2003). When Mr. Monroe agreed to plead guilty to second-degree conspiracy, he was promised that the 6-to-12 year sentence would run concurrent with the 4 Vz-to-9 year drug sentences previously imposed. This aspect of the promise was central to his decision to plead guilty. He specifically asked counsel to clarify the terms of the concurrent sentences before entering the plea. The court expressly promised Mr. Monroe that the 6-to-12 year sentence would mean that he faced "an additional year and a half in effect before parole" (A. 43). Once the 4 Vz- to-9 year drug sentences were reduced to determinate 3 year terms, the impact of the conspiracy plea meant that Mr. Monroe was facing additional time before parole-not the 1 Vz years he was promised. Indeed, the motion court recognized that a change in circumstance reduced the benefit Mr. Monroe expected to receive from his plea. (A. 6) ("that a subsequent happenstance reduced somewhat the benefit he expected to receive from his plea does not render it unknowing and involuntary"). That the change in circumstance here resulted from a new legislative enactment recognizing the draconian nature of the sentencing scheme in existence at the time Mr. Monroe's plea was induced, rather than by a vacatur of the drug 11 convictions themselves, is a distinction without a difference. Where a guilty plea has been induced by a promise that cannot be fulfilled, a defendant is entitled to withdraw his plea. People v. Rowland, 8 N.Y.3d 342 (2007). Accordingly, Mr. Monroe should have been permitted to withdraw his plea. The Appellate Division's decision should be reversed, the conviction vacated and the matter remanded to the trial court for further proceedings. I t has long been recognized that when a plea rests "in any significant degree on a promise or agreement" such "that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santo bello v. New York, 404 U.S. 257, 262 (1971). When a defendant pleads guilty because he has been promised concurrent time with a sentence in another case and that conviction is overturned, the defendant may withdraw his plea because the promise cannot be kept. People v. Pichardo, 1 N.Y.3d 126, 129 (2003). In Pichardo, the defendant pleaded guilty to murder in New York County and was sentenced to 20 years to life in prison. Id .. at 127. The next week, the defendant pleaded guilty to third-degree sale of a controlled substance in the Bronx in exchange for a 1-to-3 year sentence to run concurrently with the murder sentence. Id., at 128. After the murder judgment was vacated pursuant to a c.P.L. §440.10 motion and Pichardo was then acquitted of the murder charges, he brought a C.P.L.§440.10 motion to vacate his third-degree sale conviction "on the ground that his plea had been induced by the promise that his sentence would run concurrently with the New York county sentence, since set aside." Id., at p. 128-129 [emphasis added]. While 12 the trial court granted this motion, the First Department reversed, finding that the totality of the circumstances did not warrant vacating the third-degree sale plea, as the cases involved unrelated indictments in different counties. Id. at 129. The Court of Appeals rejected this reasoning recognizing that "when a guilty plea is induced by the court's explicit promise that the defendant will receive a lesser sentence to run concurrently with a sentence in another case, and that conviction is overturned, the defendant may withdraw his plea and face the indictment, since the promise cannot be kept." Id., citing People v. Taylor, 80 N.Y.2d 1 (1992); People v. Boston, 75 N.Y.2d 585 (1990); People v. Fuggazatto, 62 N.Y.2d 862 (1984); People v. Rogers, 48 N.Y.2d 167 (1979); People v. Clark, 45 N.Y.2d 432 (1978). The central focus of the Court's analysis was whether there had been a "fundamentally changed condition that induced [the] admission of guilt." Id. That defendant Pichardo had already served his 1-to-3 year third-degree sale sentence by the time his murder conviction was vacated so that he technically received the benefit of his bargained -for concurrent sentence, was of no import. Id., at 130. ''What changed essentially ... were the facts that induced defendant's plea," the Court recognized. Id. As such, defendant was entitled to vacate his plea. This focus on the factual circumstances that induced the guilty plea informed the Court of Appeals' subsequent analysis in People v. Rowland, 8 N.Y.3d 342, 344, 345 (2007). In Rowland, at the time the defendant pleaded guilty to the conviction being reviewed, he was serving previously imposed consecutive sentences totaling 3 to 7 years. 13 Id., at 344. He then pleaded guilty to a greater sentence of 4 to 8 years which was to run concurrently with the earlier, lesser sentences. Id. After one of his previous sentences was reversed and he had pleaded guilty to a lesser sentence, defendant moved to vacate his 4-to-8 year sentence, arguing that his expectations had been upset because his latter plea was based on the promise of concurrent time to the lesser sentence. Id. The plea court denied the motion to vacate, a decision the Appellate Division affirmed. The Court of Appeals reversed and ruled that Pichardo controlled the analysis: This case differs from Pichardo only in that the preexisting sentence here was a year shorter than the one agreed to in the plea bargain; in Pichardo, where the preexisting sentence was longer, we observed that the agreement to concurrent sentencing amounted to an "understanding that, by virtue of the plea, there would be no additional prison time." But the difference between no extra time and only a year's extra time is not decisive. The critical question is whether the removal or reduction of the preexisting sentence nullified the benefit that was expressly promised and was a material inducement to the guilty plea. Id., at 345(emphasis added). In Mr. Monroe's case, as in Prichardo and Rowland ,the promise of concurrent time was central to the plea-bargaining process. Indeed, Mr. Monroe explicitly asked his attorney to clarify, before accepting the plea, that the 6-to-12 year sentence on the conspiracy charge would run concurrently to the 4 %-to-9 year indeterminate terms he was serving on the drug charges. Indeed, even the 440 court, in denying the motion, recognized that, in light of the sentence reduction on the two B drug felonies, Mr. Monroe received a "somewhat" "reduced" benefit of his plea bargain on the conspiracy charge. (A.6; Decision and Order.) But the court refused to vacate the plea because here the earlier sentences were 14 not reduced due to the vacating of the plea bargain, but rather pursuant to the DLRA 3's ameliorative sentencing provisions. The motion court's analysis does not comport with the Court of Appeals' recognition that the determinative factor is whether the reduction of the preexisting sentence nullified the promised benefit. See People v. Rowland. 8 N.Y.3d at 345. Similarly, the Appellate Division, First Department's focus on the legally technical distinction between a conviction reversed on appeal or otherwise invalidated, as opposed to a sentence reduced pursuant to the DLRA's ameliorative sentencing provisions, elevates form over substance. As a practical matter, for an individual such as Mr. Monroe, facing the difficult decision about whether or not to plead guilty, what matters is the actual impact of the promised sentence in terms of additional time spent incarcerated. The Court of Appeals has repeatedly recognized that the relevant legal standard focuses on this practical reality -not upon abstract notions of fairness or a more technical interpretation of whether the pleading defendant received the benefit of his bargain. Thus, in Prichardo, 1 N.Y.3d at 130, the Court focused on whether the defendant would have accepted the plea to third-degree sale, had it not been for the murder conviction. Similarly in Rowland, 8 N.Y.3d at 345, where the Court could not say that the defendant "would have accepted the plea bargain in the murder case had it not been for the 2-to-4 year sentence in the stolen property case, now reduced to a year," the plea was vacated. Accord People v. Delgado, 50 A.D.3d 915 (2d Dept. 2008) 15 (vacating by applying rule in Rowland where conspiracy plea bargain was based on promise of concurrent time to felony and misdemeanor drug charges and only felony charges were reversed so that at least part of the conviction upon which the subsequent plea was induced was left untouched). Moreover, there is nothing inequitable about the outcome Mr. Monroe seeks. As a practical matter, the parties could have made clear that the terms of the conspiracy plea would remain intact regardless of any future modification to the judgments in the drug cases. See Rowland, 8 N.Y.3d at 345. Additionally, but for Mr. Monroe's fortuitous and at the time inconsequential decision to plead guilty to the conspiracy count of the indictment, instead of one of its multiple B-Ievel drug felony charges, he would not have been compelled to serve the 6-to-12 year conspiracy sentence at all, but could have applied for and been granted sentencing relief on this indictment pursuant to DLRA 3. See generally People v. Dais, 19 N.Y.3d 335 (2012) (recognizing that enactment of DLRA changed the import of litigation decisions in narcotics cases; until the enactment of the DLRA there was no import to whether a drug defendant was arraigned as a violent predicate felon and therefore parties should be permitted to litigate that issue anew at a DLRA re-sentencing). Additionally, the lower courts' reasoning for denying the motion to vacate is inconsistent with the state and federal constitutional mandate that a plea can only be considered knowing and voluntary if a defendant can be deemed to have a full and complete understanding of what the plea connotes and its consequences. See People v. 16 Harris, 61 N.Y.2d 9, 19 (1983); Boykin v. Alabama, 395 U.S. 238,242-43 (1969). There is no such thing as a knowing and voluntary plea bargain where a defendant receives some-but not all-of the benefit for which he bargained. See Brady v. United States, 397 U.S. 742 at 748 & n.6 (1970); People v. Nixon, 21 N.Y.2d 338, 350 (1967), cert. denied, 393 U.S. 1067 (1969). The error was fully preserved for review by the Court of Appeals. Mr. Monroe raised these precise arguments before the c.P.L. §440.10 motion court which considered but rejected them. The Appellate Division also directly addressed the issue and rejected these claims. The voluntariness of a plea bargain under these circumstances presents an issue oflaw subject to review by the Court of Appeals as demonstrated by Pichardo and Rowland, supra. In sum, the promise of concurrent time to the 4 1/2 -to-9 year drug sentences he was already serving was central to Mr. Monroe's decision to accept a plea and 6-to-12 year sentence on the conspiracy charge. During the plea proceedings, Mr. Monroe focused on the impact the new sentence would have on the amount of additional time he would serve and the court explicitly represented that the promised sentence would result in merely an additional year and a half before Mr. Monroe became eligible for parole. When the 4 1/2_ to- 9 year sentences were reduced to 3 year determinate terms, the plea bargain became less beneficial and Mr. Monroe was entitled to have the plea vacated. As the lower courts' reasoning in refusing to vacate the plea was fundamentally 17 flawed, and inconsistent with state and federal due process principles, the order of the Appellate Division should be reversed, Mr. Monroe's motion to vacate the conspiracy judgment granted and the case remitted to Supreme Court for further proceedings on the indictment. CONCLUSION FOR THE REASONS SET FORTH ABOVE, THE ORDER OF THE APPELLATE DIVISION SHOULD BE REVERSED, APPELLANT'S MOTION TO VACATE THE JUDGMENT GRANTED AND THE MATTER REMANDED FOR FURTHER PROCEEDINGS. Claudia S. Trupp Of Counsel July 23, 2012 18 Respectfully submitted, ~ ROBERT S. DEAN Center for Appellate Litigation 74 Trinity Place-11th Floor New York, New York 10006 COURT OF APPEALS STATE OF NEW YORK .. ------------------------------------------------------------------------J{ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- WILLIAM MONROE, Defendant-Appellant. ------------------------------------------------------------------------J{ STATEMENT PURSUANT TO RULE 5531 1. The indictment number in the court below was 6000/06. 2. The full names of the original parties were the People of the State of New York against William Monroe. There has been no change of parties on this appeal. 3. This action was commenced in Supreme Court, New York County. 4. This action was commenced by the filing of an indictment. 5. This appeal is from an order of the Appellate Division affu:ming the denial of his motion to vacate the judgment pursuant to c.P.L. §440.10(1)(h). l-A PRINTING SPECIFICATIONS STATEMENT The briefwas prepared in Wordperfect®, using a 12-pointCourier (New) font, and totaled 4,280 words. 2-A