The People, Respondent,v.William Monroe, Appellant.

Brief

N.Y.February 7, 2013

To be argued by FRANK GLASER (15 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - WILLIAM MONROE, Defendant-Appellant. BRIEF AND APPENDIX FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov PATRICK J. HYNES FRANK GLASER ASSISTANT DISTRICT ATTORNEYS Of Counsel OCTOBER 11, 2012 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 INTRODUCTION................................................................................................................ 2 POINT ................................................................................................................................... 13 DEFENDANT KNOWINGLY AND VOLUNTARILY ENTERED HIS GUILTY PLEA TO SECOND- DEGREE CONSPIRACY .......................................................................... 13 CONCLUSION ................................................................................................................... 27 -ii- TABLE OF AUTHORITIES FEDERAL CASES Strickland v. Washington, 466 U.S. 668 (1984) ........................................................... 23-24 STATE CASES People v. Boston, 75 N.Y.2d 585 (1990) ..................................................................... 13, 15 People v. Clark, 45 N.Y.2d 432 (1978) ........................................................................ 13, 15 People v. Fuggazzatto, 62 N.Y.2d 862 (1984) ............................................................ 13, 15 People v. Lowrance, 41 N.Y.2d 303 (1977) ...................................................................... 15 People v. Monroe, 89 A.D.3d 429 (1st Dept. 2011) .................................................... 1, 16 People v. Paulin, 17 N.Y.3d 238 (2011) ............................................................................. 21 People v. Pichardo, 1 N.Y.3d 126 (2003) ........................................ 9-12, 14, 16, 18-19, 21 People v. Pichardo, 1 N.Y.3d 129 (2003) ................................................... 13-14, 17, 25-26 People v. Rogers, 48 N.Y.2d 167 (1979) ..................................................................... 13, 15 People v. Rowland, 14 A.D.3d 886 (3d Dept. 2005) ....................................................... 18 People v. Rowland, 8 N.Y.3d 342 (2007) .............................................. 9-14, 16-19, 21, 25 People v. Selikoff, 35 N.Y.2d 227 (1974) .......................................................................... 26 People v. Sosa, 18 N.Y.3d 436 (2012) ................................................................................ 22 People v. Taylor, 80 N.Y.2d 1 (1992) .......................................................................... 13, 15 People v. Williams, 27 Misc. 3d 226 (Kings Co. 2010), aff’d 84 A.D.3d 1279 (2d Dept. 2011), lv. denied 17 N.Y.3d 823 (2011) ................................................................................ 9-10 STATE STATUTES CPL 440.10 .................................................................................................................. 1, 16, 25 CPL 440.10(1)(h) .................................................................................................................... 8 -iii- CPL 440.46 ....................................................................................................... 1, 8, 12, 19, 22 CPL 440.46 (1) ...................................................................................................................... 20 CPL 440.46 (3) ................................................................................................................ 14, 20 CPL Article 195 .................................................................................................................... 15 Drug Law Reform Act of 2009 ............................................................................................. 8 Penal Law 60.04 and 70.70 .................................................................................................. 20 Penal Law 70.30(1)(a) ..................................................................................................... 18, 24 Penal Law 70.30(1)(b) .......................................................................................................... 17 Penal Law 105.15 .................................................................................................................... 1 Penal Law 220.16(1), 220.39(1), 220.06(5) .................................................................... 2, 20 Penal Law 220.39(1), 220.44(2) .................................................................................... 2-4, 20 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- WILLIAM MONROE, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Robert S. Smith, Associate Judge of the Court of Appeals, William Monroe appeals from a November 1, 2011 order of the Appellate Division, First Department. People v. Monroe, 89 A.D.3d 429 (1st Dept. 2011) (A1- 4).1 That order affirmed an October 15, 2010 order of the Supreme Court, New York County (Bruce Allen, J.) (A5-7), which denied both defendant’s CPL 440.10 motion to vacate a September 27, 2007 judgment convicting him by plea of second-degree conspiracy (Penal Law 105.15), and his CPL 440.46 motion for resentencing on that conviction.2 Defendant is currently on parole. 1 “A” refers to Appellant’s appendix; “B” refers to his brief. “RA” refers to Respondent’s supplemental appendix. 2 Defendant’s raises no claim now as to the denial of his CPL 440.46 motion. -2- INTRODUCTION On September 7, 2004, defendant sold cocaine near a school (RA4-5 [Indictment 0027/05]). On October 12, 2004, defendant and a cohort sold a vial of crack to an undercover officer (A76). That day, the police arrested defendant and the cohort and recovered their stash of 19 additional vials (A76). By Indictment 5520/04, filed October 22, 2004, a New York County grand jury charged defendant with third- degree criminal possession and sale, and fourth-degree possession, of a controlled substance (Penal Law 220.16[1], 220.39[1], 220.06[5]), in connection with the October incident (RA1-3). By Indictment 0027/05, filed February 4, 2005, a New York County grand jury charged defendant with third-degree criminal sale of a controlled substance and criminal sale of a controlled substance in or near school grounds (Penal Law 220.39[1], 220.44[2]), in connection with the September incident (RA4-5). On November 22, 2005, in New York County Supreme Court, before the Honorable Eduardo Padro, defendant pleaded guilty to third-degree criminal sale of a controlled substance in each pending indictment to cover and satisfy both of them (A23, 73-74). While the indictments for the 2004 drug sale cases (the “tethered cases”) were pending, defendant, who was at liberty, performed managerial duties and sold cocaine for a Harlem drug-dealing organization known as the “Schomburg Crew” (A74). During 2005 and 2006, defendant stored drugs belonging to the organization in his apartment, distributed drugs to street-level workers, collected proceeds of drug sales from the organization’s sellers, enforced discipline among workers, and protected the -3- organization’s interests with physical force and threats (A74; See RA8-44). Specifically, on December 21, 2005, December 28, 2005, and January 4, 2006, while defendant was awaiting sentencing on his November 2005 guilty pleas, he sold Schomburg Crew cocaine to an undercover police officer (A74-75; RA14-16, 28-31). On January 9, 2006, Justice Padro sentenced defendant on his guilty pleas in the tethered cases, as a second felony offender, to concurrent, indeterminate prison terms of four and one-half to nine years (A34). Defendant was serving those prison terms ten months later, when, on November 6, 2006, a New York County grand jury filed Indictment 6000/2006, charging defendant and nine other Schomburg Crew members in 41 counts. The indictment accused defendant of second-degree conspiracy, three counts of third-degree criminal sale of a controlled substance, three counts of criminal sale of a controlled substance in or near school grounds, and two counts of fourth-degree criminal possession of a controlled substance (RA8-24, 28- 31). It alleged that defendant personally performed eight of 58 overt acts pleaded in the conspiracy count (RA14-16). On August 10, 2007, before the Honorable Bruce Allen, defense counsel Anthony Iannarelli, Esq. announced that defendant wanted to withdraw his not guilty plea and plead guilty to second-degree conspiracy in satisfaction of the entire indictment (A41-42). Counsel stated that he and defendant had had “ample time to discuss” the case (A41). Defendant understood the “ramifications of the plea” (id.). -4- Counsel had given defendant “the option of going to trial,” and defendant had chosen “not to take that option” (id.). Shortly after the judge began the allocution, defendant hesitated to confirm that he had had sufficient time to discuss the plea with counsel (A42-43). The court directed defendant to confer with counsel (id.). After a pause, the following occurred: MR. IANNARELLI: Your Honor, one of the issues that my client wanted to consult with me about more is whether the sentence is going to run concurrent to the present sentence he is serving. And I know your Honor was about to go through that but nonetheless that was the question he had posed. My understanding is that he’ll be subject to an indeterminate sentence of six to 12 years and it will run concurrent to the term that he’s presently serving. THE COURT: 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. DEFENDANT: I understand. THE COURT: So it’s an additional year and a half in effect before parole. DEFENDANT: Yes, I understand. THE COURT: Is that all clear? DEFENDANT: Yes. (id.). Defendant confirmed that he had had enough time to consult his lawyer, had not been threatened or forced to plead guilty, and understood he was waiving his right to a jury trial as well as specified additional rights (A43-44). The following occurred: -5- THE COURT: By your plea of guilty, Mr. Monroe, do you admit that during the period roughly from January 2005 to November 2006 in New York county that you, acting with the others named in this indictment with intent that conduct constituting the crimes of Criminal Sale of a Controlled Substance in the First and Second Degrees and Criminal Possession of a Controlled Substance in the First and Second Degrees be performed, agreed with each other and with others known and unknown to engage in or cause the performance of such conduct? MR. IANNARELLI: One moment please. (PAUSE.) MR. IANNARELLI: Your Honor, if we may proceed. THE COURT: Mr. Monroe. THE DEFENDANT: Yes? THE COURT: That was very formal language, the conspiracy statute. Obviously, I was reading from the indictment. I’m now going to ask [the prosecutor] if he wishes to ask you some more pointed questions about this conspiracy. [PROSECUTOR]: No. Just that he’s looked at the names in the indictment and he’s familiar with what he’s charged with. THE DEFENDANT: Yes, I’m familiar with it. [PROSECUTOR]: Then I have no further questions. THE COURT: And, Mr. Monroe, we spoke about it earlier but we’ll go over it again, I indicated if I found the allocution acceptable I would make you a promise that your sentence would be six to 12, but that it would run concurrent with the four and a half to nine that you’re currently serving and that it would run nunc pro -6- tunc with that sentence. Is that your understanding of the sentence promise? THE DEFENDANT: Yes. THE COURT: And it was also indicated between today and the sentencing date there may be further discussions between the parties and that if [the prosecutor] recommends a lower sentence I will impose that sentence, is that your understanding as well? THE DEFENDANT: Yes sir, that’s my understanding. THE COURT: Did I make any other promise to you? THE DEFENDANT: No. THE COURT: Then the allocution is acceptable to me. Is it acceptable to the parties? [PROSECUTOR]: It’s acceptable to the People. (A44-46 [emphasis added]). Defense counsel asked the court to translate “nunc pro tunc” from Latin to English; the court said the phrase meant “then as now” (A: 46- 47). The clerk formally entered the plea (A47). At the September 27, 2007 sentencing proceeding, defendant was adjudicated a second felony offender (A64-65). The court told the clerk to “proceed to the sentencing itself” (A65). The following occurred: THE CLERK: William Monroe, you are before the court for sentencing following your conviction by plea to the crime of conspiracy in the second degree. Before sentence, the Court will allow you, your attorney, and the district attorney an opportunity to address the Court with any matter relevant to sentence. -7- [PROSECUTOR]: The People rely on the promised sentence your Honor. The defendant pled guilty to the first count. He was promised 6 to 12 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. THE COURT: Yes. That’s what I have. Mr. Iannarelli, do you wish to be heard? MR. IANNARELLI: Yes, your Honor. My client has a question for me. (The defendant and counsel confer). MR. IANNARELLI: Judge, I concur with the People. My understanding is that it’s a sentence, indeterminate sentence, of 6 to 12 years, and it’s to run concurrent nunc pro tunc to the beginning of the sentence that he’s serving now. THE COURT: That’s correct. (A65-66). As relevant here, when the court pronounced sentence, the following occurred: THE COURT: As you know, it’s a promised sentence here. There’s not much room to maneuver, so to speak. THE DEFENDANT: I understand. THE COURT: It’s 6 to 12, but it runs concurrent to the sentences that you are currently serving. And it runs nunc pro tunc back to the date mentioned by [the prosecutor] which is, again -- [PROSECUTOR]: January 9, 2006. -8- THE COURT: So, you have almost two years in now on this case. I also will mandate your placement in the CASAT.3 As you probably know, that won’t kick in for a while. But when it does, it could help you with an early release, if not even more help you with your addiction problems. So good luck there . . . (A67-68). Defendant said he had “tried [his] best” to help the prosecution (A68). The judge stated he “would certainly not oppose any sort of early release in your case. The pre-sentence report backs that up. Good luck” (A68). On December 11, 2009, defendant moved before Justice Padro to have the indeterminate four and one-half to nine year sentences for the tethered cases reduced to determinate ones under the Drug Law Reform Act of 2009. L.2009, Ch. 56 (codified at CPL 440.46) (the “2009 DLRA”) (A3-4, 25).4 On April 16, 2010, following the People’s response, the court vacated the sentences for the tethered cases and resentenced defendant to concurrent determinate three-year prison terms followed by two years’ post release supervision (A26-27, 70). Three months later, on July 7, 2010, defendant, represented by appellate counsel, moved under CPL 440.10(1)(h) to vacate the conspiracy judgment on the ground that defendant’s plea was “unknowing” (A27-30) and, in the alternative, under CPL 440.46 for 2009 DLRA resentencing on the conspiracy conviction (A31). The 3 CASAT is “Comprehensive Alcohol and Substance Abuse Treatment” (A25). 4 The 2009 DLRA became effective October 7, 2009. L.2009, Ch.56. -9- “circumstances that induced the plea” had “changed,” counsel asserted, in that the one and one-half year difference between the four and one-half year minimum period for the tethered cases and the six year minimum period for the conspiracy case had increased to three years when defendant’s 2009 DLRA motion was granted (A27-30). Defendant relied mainly on People v. Pichardo, 1 N.Y.3d 126 (2003) and People v. Rowland, 8 N.Y.3d 342 (2007) as authority for the relief he sought. In her affirmation in support of the motion, counsel averred that when defendant pleaded guilty in the instant case, he had not received any disciplinary tickets resulting in lost good time (A24). Defendant had performed well in corrections programs, scored high in pre-GED classes, and earned his GED in October 2008 (A24). Thus, counsel asserted, “Mr. Monroe was on his way to not having his good time credits withheld and therefore could have legitimately expected to be released at his earliest parole eligibility date” (A25 [emphasis added]). Defendant himself did not submit an affidavit in support of the motion. Counsel’s affidavit was “made upon information and belief,” but did not cite defendant as the source of any averment (see A22, 25).5 The People opposed defendant’s motion in an October 12, 2010 affirmation (A73-83). Citing People v. Williams, 27 Misc. 3d 226 (Kings Co. 2010), aff’d 84 5 Counsel described a June 9, 2010 prison visit with defendant during which the two discussed his criminal history, as well as his addictions and unhealthy lifestyle prior to being imprisoned (A25 n.2). -10- A.D.3d 1279 (2d Dept. 2011), lv. denied 17 N.Y.3d 823 (2011), the People argued, inter alia, the failure to make drug conspiracy convictions eligible for resentencing under the 2009 DLRA was not a Legislative oversight, but, rather, a continuation of a Legislative policy dating back to the original reforms in the 2004 DLRA not to alter the sentencing structure for convictions for conspiring to commit a Class A drug felony. (A78-79 [quoting People v. Williams, 27 Misc. 3d at 232]). More specifically, the People contended, The Legislature rationally excluded Class B drug conspiracies from the 2009 DLRA because they are not the type of low level, non-violent offenders who were the focus of the DLRA’s remedial provisions. (A79; see People v. Williams, 27 Misc. 3d at 233-236). Thus, the People asserted, To vacate [defendant’s] conspiracy conviction because his drug felony conviction was vacated would run counter to legislative intent as the defendant would benefit from the [2009 DLRA]. The Court should thus deny the defendant’s motion to vacate the conspiracy conviction as it is outside of the Court’s jurisdiction and against legislative intent to do so. (A81 [paragraph numbers omitted]). Further, the People argued, neither People v. Pichardo nor People v. Rowland required vacatur of defendant’s guilty plea: This is not a case where the defendant’s guilty plea was induced by the promise that the sentence would run concurrent with a previous conviction that is subsequently overturned due to errors in the conviction itself. Here, the defendant’s conspiracy conviction was promised to run -11- concurrent with the two drug felony sentences that were subsequently vacated and resentenced because the legislation for drug sentencing had changed. The defendant’s convictions for drug felonies are fundamentally sound; vacatur of the defendant’s sentence for the conspiracy conviction is thus unwarranted as the drug felony convictions that the conspiracy conviction was promised to run concurrent to were vacated only because of new legislation that did not intend to benefit defendants convicted of conspiracy convictions. (A80 [paragraph numbers omitted]). On October 19, 2010, Justice Allen denied defendant’s motion in a written decision (A5-7). The court distinguished People v. Pichardo and People v. Rowland, noting that the rule derived from them “has only been applied in cases where a previous conviction has been overturned” (A6). Said the court, That is distinguishable from the situation here. 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. (A6). Defendant took an appeal to the Appellate Division, First Department, essentially repeating the claims he had raised in the motion court (B9).6 Following the People’s response, on November 1, 2010, the Appellate Division unanimously 6 See supra n.2. -12- affirmed the motion court’s decision (A2-4). The Appellate Division recounted defendant’s conspiracy plea bargain and his successful CPL 440.46 motion as to the tethered cases. The appellate court summarized defendant’s claim, as relevant here, Defendant argues 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. (A3 [internal quotation marks and citations omitted]). However, the court reasoned, 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. (A3-4). On appeal to this Court, defendant claims that once he was resentenced on the tethered convictions, the plea court’s “promise” that he would have to wait only an additional one and one-half years before becoming eligible for parole, could no longer be fulfilled. This circumstance, defendant asserts, entitles him to vacatur of his conspiracy plea. -13- POINT DEFENDANT KNOWINGLY AND VOLUNTARILY ENTERED HIS GUILTY PLEA TO SECOND- DEGREE CONSPIRACY (Answering Defendant’s Brief). Defendant contends, as he did below, that he is entitled to vacatur of his conspiracy plea (B11-18). Defendant posits that Justice Allen “promised” him that if he accepted the plea bargain, he would have to wait only one and one-half years after he would have reached parole eligibility on the tethered cases before becoming eligible for parole (B11, 17). Once he was resentenced on the tethered cases, defendant contends, the purported promise could no longer be fulfilled (B4, 12, 15). He complains that the success of his resentencing motion resulted in “additional time before parole – not the 1 ½ years he was promised” (B11). Defendant’s claim lacks merit. When a “material inducement” to a guilty plea is the court’s express promise that the defendant will receive a sentence to run concurrently with a preexisting sentence on another conviction, and that conviction is subsequently overturned so that the promise cannot be kept, the defendant may “withdraw his plea and face the indictment.” People v. Pichardo, 1 N.Y.3d 129 (2003) (citing People v. Taylor, 80 N.Y.2d 1 [1992]; People v. Boston, 75 N.Y.2d 585 [1990]; People v. Fuggazzatto, 62 N.Y.2d 862 [1984]; People v. Rogers, 48 N.Y.2d 167 [1979]; People v Clark, 45 N.Y.2d 432 [1978]); accord People v. Rowland, 8 N.Y.3d 342, 344-345 (2007). A “material inducement” is one without which the defendant would have declined to -14- plead guilty. See People v. Pichardo, 1 N.Y.3d at 130. If such a preexisting conviction is overturned, and the resulting “removal or reduction” of the sentence on that conviction nullifies a “benefit that was expressly promised and was a material inducement to the guilty plea,” a motion to withdraw the plea should be granted. People v. Rowland. 8 N.Y.3d at 345. Thus, when a plea offer is tethered to a preexisting conviction by an express promise of concurrent sentencing, and such promise induces a guilty plea, that plea must be vacated as unknowing where the promise cannot be kept because a legal defect in the preexisting conviction, unknown to defendant at the time of the plea, resulted in the vacatur or reversal of such conviction and the elimination or reduction of the corresponding sentence. See People v. Rowland, 8 N.Y.3d at 342; People v. Pichardo, 1 N.Y.3d at 126. Here, there was never any defect in the tethered convictions. There is no dispute that the convictions were valid in November 2005 when defendant pleaded guilty, and in January 2006 when the court imposed sentence. They remained in all respects valid in August 2007 when defendant entered into the plea agreement in the conspiracy case in reliance on the convictions’ validity, and in September 2007 when the agreed-upon sentence was pronounced and judgment entered. Further, their validity was not affected by defendant’s 2009 DLRA resentencing motion. A court deciding such a motion may not even “entertain any matter challenging the underlying basis of the subject conviction.” L. 2004, Ch. 738, Sec. 23 (incorporated in CPL 440.46[3]). -15- Moreover, defendant has cited no case, nor are the People aware of any, in which a plea conditioned on concurrent sentencing was vacated as “unknowing,” in the absence of an unknown defect in the tethered conviction that existed at the time of the plea. See People v. Taylor, 80 N.Y.2d at 5-6, 15 (defendant pleaded guilty and was promised concurrent sentencing with previous trial conviction; upon reversal of trial conviction, defendant entitled to vacatur of plea); People v. Boston, 75 N.Y.2d at 589 (defendant pleaded guilty to attempted murder and assault, and was sentenced to concurrent prison terms; upon vacatur of attempted murder plea due to violation of CPL Article 195, defendant entitled to vacatur of assault plea); People v. Fuggazzatto, 62 N.Y.2d at 863 (same as Taylor); People v. Rogers, 48 N.Y.2d at 175 (same); People v. Clark, 45 N.Y.2d at 440 (after adverse suppression ruling, defendant pleaded guilty under indictment for which suppression had been sought and to another indictment, with promise of concurrent sentencing; upon reversal of order denying suppression, defendant entitled to vacatur of both pleas); cf. People v. Lowrance, 41 N.Y.2d 303, 304-305 (1977) (construed in People v. Clark, 45 N.Y.2d at 440) (after trial conviction, defendant entered guilty plea to cover other charges with understanding that prosecutor would recommend concurrent sentencing; upon reversal of trial conviction, defendant not entitled to vacatur of guilty plea because there had been no express promise of concurrent time). Thus, there is no authority for vacatur of the conspiracy plea in this case. -16- As the Appellate Division recognized, it would be unfair to use a defective preexisting conviction to induce agreement to a guilty plea tethered to such a conviction by concurrent prison time, and then refuse to let the defendant out of the deal after the defect is discovered and the conviction overturned. See People v. Monroe, 89 A.D.3d at 430 (A3-4). On the other hand, it is fair to enforce a plea bargain tethered by concurrent sentencing to a previous conviction where, as here, there is no defect in the previous conviction and the only alleged change in circumstances results from the defendant’s having availed himself of an ameliorative statute enacted after the challenged plea. See id. (A3-4). Nothing in Pichardo or Rowland is to the contrary. Juan Carlos Pichardo was convicted after trial of second-degree murder, and sentenced to from 20 years to life. People v. Pichardo, 1 N.Y.3d at 127. Thereafter, he pleaded guilty to a class B felony drug sale in exchange for a promised sentence of one to three years to run concurrently with the murder sentence; the court sentenced Pichardo as promised. Id. at 127-128. Subsequently, the murder conviction was vacated under CPL 440.10 for ineffective assistance of trial counsel. Id. at 128. Pichardo was retried and acquitted. Id. By then, he had fully served the one to three year drug sentence. Id. Pichardo moved, under CPL 440.10, to vacate the drug conviction “on the ground that his plea had been induced by the promise that his sentence would run concurrently with the [murder] sentence, since set aside.” Id. at 128-129. This Court concluded that Pichardo was entitled to vacatur of his plea, stating, inter alia, -17- What changed essentially here were the facts that induced defendant’s plea. In effect, when the murder conviction was vacated, defendant’s “concurrent” time became a nullity – in the eyes of the law, it is as if he served no time at all on the murder, and his sentence on the drug charge stood alone, based on an unfulfilled and unfulfillable promise. On this record, we cannot say that defendant would have foregone pretrial and trial rights and pleaded guilty to the top count of the [drug sale] indictment . . . had it not been for the [murder] conviction . . . of which he now stands acquitted. People v. Pichardo, 1 N.Y.3d at 130. John Rowland was under indictment for murder and other crimes when, in two other cases, he was sentenced to from one to three years for a violation of probation and from two to four years for criminal possession of stolen property. Rowland, 8 N.Y.3d at 344. Those sentences ran consecutively. Id. Thus, when the murder case came to trial, Rowland was already imprisoned for “a minimum of three and a maximum of seven years.” Id.7 During the murder trial, Rowland entered an Alford plea to two counts in satisfaction of the entire indictment, in exchange for promised sentences that were to “run consecutively to one another and would total 4 to 8 years,” but would run concurrently with the sentences he was already serving. Id. Thus, this Court said, “it seems that the anticipated effect of the plea bargain in the 7 See Penal Law 70.30(1)(b) (when a person is under more than one indeterminate sentences that run consecutively, the sum of the minimum periods of imprisonment is the “aggregate minimum period of imprisonment,” and the sum of the maximum terms is the “aggregate maximum term”). -18- murder case was to add a year to the total time [Rowland] was facing.” Id.8 Thereafter, the possession of stolen property conviction was reversed because the trial judge had, over defense objection, omitted an element of the crime from its final jury charge. People v. Rowland, 14 A.D.3d 886, 887 (3d Dept. 2005). Rowland subsequently “made a plea bargain on that charge resulting in a one year sentence – a reduction of 1 to 3 years” from the two to four year sentence that had been in effect when he had negotiated the Alford plea. Id. “[Rowland] . . . moved to vacate the conviction entered on his Alford plea, asserting” he would not have entered it “but for” the preexisting 2 to 4 year stolen property sentence and his “expectation” that the four to eight year sentence for the Alford plea would be concurrent with that sentence. Id. Said the Rowland Court, 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 . . . the agreement to concurrent sentencing amounted to an understanding that . . . 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 a benefit that 8 See Penal Law 70.30(1)(a) (when a person is under more than one indeterminate sentences that run concurrently, “time served under imprisonment on any of the sentences shall be credited against the minimum periods of all the concurrent indeterminate sentences and against the terms of all the concurrent determinate sentences,” and the maximum terms of the indeterminate sentences “merge” and are “satisfied by discharge of the term which has the longest unexpired time to run.”). -19- was expressly promised and was a material inducement to the guilty plea. The basis for our decision in Pichardo was that we cannot say that defendant would have . . . pleaded guilty to the [drug sale charge] had it not been for the . . . conviction for murder, of which he now stands acquitted. So here, we cannot say defendant would have accepted the plea bargain in the murder case had it not been for his 2-to- 4-year sentence in the stolen property case, now reduced to a year. People v. Rowland, 8 N.Y.3d at 345 (internal citations and quotation marks omitted). In short, in both Pichardo and Rowland, a preexisting conviction having a defect unknown to the defendant was used as leverage to induce a guilty plea that was tethered to such conviction by a promise of concurrent time. In both cases, this Court held that the resulting plea had to be vacated because the previously unknown defect had been discovered, resulting in the vacatur or reversal of the preexisting conviction. In the instant case, the Appellate Division correctly – in total harmony with Pichardo and Rowland – declined to vacate defendant’s conspiracy plea because the integrity of the tethered convictions was indisputably unaffected by the sentence reduction obtained under the ameliorative statute. Thus, neither Pichardo nor Rowland supports defendant’s position here. This case does not present an occasion to determine whether the reasoning of Pichardo and Rowland should be extended to include unknown legal defects in tethered concurrent sentences (as opposed to convictions), because the DLRA reduction procedure did not expose any defect in the sentences imposed upon the tethered convictions here. Codified in CPL 440.46, the 2009 DLRA was the -20- Legislature’s third ameliorative amendment to the Rockefeller Drug Laws. It provided that a person who, prior to January 13, 2005, had been convicted of a class B felony defined in Article 220 of the Penal Law, and who was serving an indeterminate sentence with a maximum term of more than three years’ imprisonment could, with certain exceptions not at issue here, file a motion to be resentenced to a determinate prison term in accordance with Penal Law 60.04 and 70.70. See CPL 440.46 (1). Section 23 of Chapter 738 of the Laws of 2004, which prescribed procedures for the 2004 DLRA, was incorporated in the 2009 DLRA by CPL 440.46 (3). As relevant here, the incorporated section provided, Upon its review of the submissions and the findings of fact made in connection with the application, the court shall, unless substantial justice dictates that the application should be denied, in which event the court shall issue an order denying the application, specify and inform such person of the term of a determinate sentence of imprisonment it would impose upon such conviction . . . and shall enter an order to that effect. The court shall notify the person that, unless he or she withdraws the application or appeals from such order, the court will enter an order vacating the sentence originally imposed and imposing a determinate sentence of imprisonment . . . L.2004 Ch. 738 Sec. 23. Although defendant here obtained resentencing under that statute, that did not mean there was any defect in the original sentences. At the time those sentences were imposed – and, more to the point, at the time of the challenged plea – there was no -21- such defect. It is illogical to suggest, as defendant does (see B11), that the 2009 DLRA’s enactment retroactively created a sentencing defect that previously did not exist. The terms of the statute certainly do not purport to do so. And they do not address the sort of substantive or procedural errors which, in Pichardo (ineffective assistance of trial counsel) and Rowland (omitting an element of the crime from the jury charge) had required overturning the tethered convictions in those cases. Rather, “[t]he purpose of the 2009 DLRA . . . was to grant relief from what the Legislature perceived as the ‘inordinately harsh punishment for low level non-violent drug offenders’ that the Rockefeller Drug Laws required.” People v. Paulin, 17 N.Y.3d 238, 244 (2011) (citations omitted). The sentencing reductions granted in the tethered cases here did not indicate that the 2005 sentencing proceedings, or the results of those proceedings, were in any way defective. They simply reflected a Legislative judgment that the original lawful sentences imposed under the Rockefeller Drug Laws should comport with society’s revised perception of appropriate class B felony drug sale sentences. Defendant suggests that all facts concerning tethered convictions, whether or not knowable at the time of the guilty plea, must in fact be known by the defendant for the plea to be “knowingly” entered (B16). However, none of the cases he cites for this proposition (B16-17) even involves a pleading defendant’s ignorance of a fact; rather, those cases all address “knowingly” in the context of pleading defendants’ waivers of constitutional rights (see id.). In any case, as Justice Allen pointed out -22- below, “while a plea must be knowing, it does not have to be prescient” (A6). Stated differently, since a future ameliorative act of the Legislature cannot be known at the time of a guilty plea, its occurrence should not entitle a defendant to vacatur of the plea. Further, the determination whether substantial justice dictates denial of a 2009 DLRA application is a “statutorily required exercise of judicial discretion” that must be resolved in the movant’s favor as a prerequisite to resentencing. People v. Sosa, 18 N.Y.3d 436, 443 (2012); see L. 2004, Ch. 738, Sec. 23 (incorporated by CPL 440.46). Accordingly, the 2009 DLRA did not automatically entitle defendant to vacatur of his sentences, as one would have expected the statute to do had the Legislature determined in 2009 that all class B felony Rockefeller Drug Law sentences were to be considered retroactively illegal. The grant of 2009 DLRA relief to defendant, therefore, did not indicate that his original sentence was defective, much less than that the defect was one which a pleading defendant was entitled to know in 2007. Moreover, in making a “substantial justice” determination, a 2009 DLRA motion court is obliged to consider a broad range of factors which, logically, would include any anticipated effect that a sentence reduction could have on other convictions in the applicant’s criminal record. Were the motion court to perceive such a potential effect and, in the mandated exercise of discretion, determine that such effect would unjustly distort that criminal record, the court could well find that substantial justice dictated denial of resentencing. Thus, granting defendant the relief he seeks here would set a -23- precedent which, to the extent it would influence other resentencing courts to deny resentencing in future 2009 DLRA proceedings, would frustrate the ameliorative purposes of the 2009 DLRA. Of course, had the 2009 DLRA reduction actually been objectively detrimental to defendant, he might be entitled to some relief in a challenge to the resentencing proceeding. But notwithstanding defendant’s complaints about the wider “gap,” he is plainly not worse off. Absent any allegation that defendant’s attorney in the DLRA proceedings failed to explain to defendant the ramifications of choosing resentencing over withdrawal of his motion, this Court must presume that counsel competently advised defendant of the consequences of his choice. See Strickland v. Washington, 466 U.S. 668, 689 (1984). Defendant was thus perfectly situated to choose between his options to obtain the maximum available benefit. When defendant chose resentencing, he gave up the one and one-half year difference between the minimum period of his sentence for the tethered cases and the minimum period of his sentence for his conspiracy plea. The only rational explanation for defendant’s choosing to be resentenced was that he, upon advice of counsel, viewed that outcome as, on balance, more beneficial to him than the status quo. Obviously, defendant did not regard the widening gap or the now-complained-of “unfulfilled” promise as constituting a detriment. Therefore, to the extent “practical reality” (B15) is relevant to the analysis, affirmance is the indicated outcome. -24- Defendant suggests that whatever may be the general rule, the express language of the plea court below – “it’s an additional year and a half in effect before parole” (A43) – controls the outcome here (B11-12). However, his assertion that his resentencing resulted in “additional time before parole – not the 1 ½ years he was promised” (B11), incorrectly assumes that the plea court’s remark was a promise and part of the plea bargain. In fact, the court’s comment was simply part of an explanation that the conspiracy sentence would not only run concurrently with the tethered sentences, but also, by operation of law, run “nunc pro tunc” with them, i.e., that “the six to 12 will begin on the same day that the four and a half to nine began” (id.). Indeed, Penal Law 70.30(1)(a) provides, in pertinent part, that when a person is under multiple indeterminate sentences that run concurrently, “time served under imprisonment on any of the sentences shall be credited against the minimum periods of all the concurrent indeterminate sentences and against the terms of all the concurrent determinate sentences.” Penal Law 70.30(1)(a) (see supra n.8). The comment did no more than explain what was already provided by statute. See id. It was by no means an additional promise or part of the plea bargain.9 In short, the court’s accurate calculation of the effect of the plea under current law was plainly 9 Penal Law 70.30(1)(a) also covered defendant’s situation once the tethered sentences were reduced, by providing that defendant receive credit “against the minimum” of the conspiracy sentence and “against the term[ ]” of the newly imposed determinate sentences. See id. -25- neither meant nor understood as a promise that the law would not change, especially that it would not change in defendant’s favor. Not to be overlooked, after the noted remark, there was a pause in the plea proceedings, after which the judge restated the promise of concurrent time for purposes of formal allocution. At the later time, the judge did not mention parole eligibility or perform any arithmetic to explain the operation of the sentencing statute or the promise of concurrent time. Upon inquiry, however, defendant confirmed that the promise as then stated was correct, and that the judge had not made any other promise to him (A45-46). Defendant’s expressed concern was consistently directed to the start date of his new sentence, never to the “gap” between parole eligibility dates. Tellingly, too, defendant below never averred that he understood the court’s remark to be part of the sentencing promise, or that the remark was, in his mind, a material inducement to his decision to plead guilty. The CPL 440.10 motion papers did not attribute any such statement to defendant. Nor did the defense briefs to the Appellate Division or this Court maintain that defendant actually understood the remark as such an inducement. Since it is, at the very least, “unclear” that the plea court’s remark was a “material inducement” to defendant’s guilty plea, “vacatur of the plea is unwarranted.” See People v. Pichardo, 1 N.Y.3d at 129; People v. Rowland, 8 N.Y.3d at 344 (defense motion to vacate plea included assertion that defendant “would not have entered the plea but for the existence of the 2-to-4-year sentence for -26- possession of stolen property, and his expectation that the sentence resulting from that plea would be concurrent with that preexisting sentence”).10 Finally, even if defendant were entitled to some form of relief, it would not be necessary to vacate his conspiracy plea. “Of course, 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) (citation omitted). Here, vacatur of defendant’s plea would be an unfair windfall for him because it is still possible, instead, to fulfill the purported promise. As defendant stated in his Appellate Division brief, this could be done by reducing his sentence on the conspiracy charge to four and one-half to nine years’ imprisonment, a legal sentence for a second felony offender who stands convicted of a class B felony. See Defendant’s Appellate Division Brief: 12. Although the effect of such relief would be contrary to the legislative design of the 2009 DLRA, under which no sentence-reduction benefits for defendants convicted of conspiracy were envisioned, the People might nevertheless prefer that outcome to an outright vacatur of the plea. And if such a reduction were to occur, the difference between the minimum on the conspiracy sentence and the determinate terms imposed pursuant to defendant’s 2009 DLRA motion would come out to precisely one and one-half years. See id. Thus, the greatest relief to which defendant would be entitled 10 But see People v. Pichardo, 1 N.Y.3d at 132 (dissent) (noting absence of such assertion in motion to vacate). -27- if his claim were meritorious would be a remand for the People to elect whether defendant should receive performance of the alleged promise or a trial on the conspiracy indictment. In sum, defendant is not entitled to the relief he seeks, and the Court should affirm the Appellate Division’s order. CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: FRANK GLASER Assistant District Attorney PATRICK J. HYNES FRANK GLASER Assistant District Attorneys Of Counsel October 11, 2012