The People, Respondent,v.Rafael L. Belliard, Appellant.BriefN.Y.January 2, 2013Brief Completed: June 14, 2012 To Be Argued By: Leslie E. Swift Time Requested: 10 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- RAFAEL L. BELLIARD, Defendant-Appellant. BRIEF FOR RESPONDENT SANDRA DOORLEY District Attorney of Monroe County Attorney for Respondent By: Leslie E. Swift Senior Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4564 Fax: (585) 753-4576 -i- TABLE OF CONTENTS TABLE OF AUTHORITIES COUNTER-STATEMENT OF THE QUESTIONS INVOLVED STATEMENT OF THE NATURE OF THE MATTER COUNTER- STATEMENT OF THE FACTS ARGUMENT POINT I DEFENDANT'S PL 70.25 (2-a) PLEA CONTENTION IS NOT PROPERLY BEFORE THIS COURT AS IT IS NOT ONLY UNPRESERVED BUT ALSO INCORRECTLY PREMISED UPON PRESUMED MATTERS iii 1 3 4 9 WHICH DEHORS THE APPELLATE RECORD. 9 A. Defendant's untimely PL 70.25 (2-a) plea assertion is not preserved for appellate review and is further not exempt from the preservation requirement for any reason. 9 B. Defendant's extra-record PL 70.25 (2-a) plea claim is not reviewable by this Court without improperly resorting to guess-work. 16 POINT II THE FOURTH DEPARTMENT'S AFFIRMANCE SHOULD STAND BECAUSE CONSECUTIVE SENTENCING VIA PL 70.25 (2-a) WAS NOT A DIRECT CONSEQUENCE OF DEFENDANT'S 2007 PLEA DEAL. 20 A. B. CONCLUSION -ii- Plea bargaining law. PL 70.25 (2-a) should not be categorized as a direct consequence because it had no impact upon defendant's 2007 sentence as he received the bargained-for arrangement. 21 24 31 -iii- TABLE OF AUTHORITIES FEDERAL CASES Brady v. United States, 397 US 742 (1970) ...................................... 21,22 Santobello v. New York, 404 US 257 (1971) ........................................ 21 United States v. Parkins, 25 F3d 114 (2d Cir 1994) .................................. 29 Wilson v. McGinnis, 413 F3d 196 (2d Cir 2005) ............................... 24, 28, 29 STATE CASES People ex ret. Gill v. Greene, 12 NY3d 1 (2009) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 25, 27, 30 People v. Adams, 46 NY2d 1047 (1979) ........................................... 9 People v. Alexander, 97 NY2d 482 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Baumann and Sons Buses, 6 NY3d 404 (2006) ......................... , ... 10 People v. Belliard, 18 NY3d 955 (2012) ........................................ 3, 10 People v. Belliard, 89 AD3d 1443 (4th Dep't 2011) ................................ 3, 7 People v. Bobo, 41 AD3d 129 (1st Dept 2007) ..................................... 30 People v. Boyd, 12 NY3d 390 (2009) ............................................. 14 People v. Boyer, 91 AD3d 1183 (3d Dept 2012) .................................... 27 People v. Cass, 18 NY3d 553 (2012) ............................................. 16 People v. Catu, 4 NY3d 242 (2005) ........................................ 13, 14,30 People v. Clark, 93 NY2d 904 (1999) ............................................ 13 People v. Claudio, 64 NY2d 858 (1985) .......................................... 11 People v. Cornell, 16 NY3d 801 (2011) ........................................... 26 People v. Fiume.freddo, 82 NY2d 536 (1993) ...................................... 22 -iv- People v. Ford, 86 NY2d 397 (1995) .......................................... 23, 26 People v. Garcia, 92 NY2d 869 (1998) ........................................... 22 People v. George, 59 AD3d 858 (3d Dept 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v. Gravino, 14 NY3d 546 (2010) ....................................... 26,27 People v. Green, 75 NY2d 902 (1990), 498 US 860 (1990) ........................... 21 People v. Harnett, 16 NY3d 200 (2011) ..................................... 23, 25,26 People v. Hill, 9 NY3d 189 (2007) ............................................... 14 People v. Johnson, 183 AD2d 573 (1st Dept 1992), 80 NY2d 905 ...................... 27 People v. Kim, 91 NY2d 407 (1998) ............................................. 16 People v. Knapp, 57 NY2d 161 (1982) ........................................... 16 People v. Lagas, 76 AD3d 384, 385-387 (3d Dept 2010), 16 NY3d 744 (2011) .... ; ....... 12 People v. Latham, 90 NY2d 795 (1997) ........................................... 23 People v. Lopez, 71 NY2d 662 (1988) ......................................... 12, 13 People v. Louree, 8 NY3d 541 (2007) ............................................ 14 People v Marrow, 95 AD2d 839 (2d Dept 1983) .............................. 12, 14,28 People v. Martin, 50 NY2d 1029 (1980) ....................................... 10, 16 People v. Michael, 48 NY2d 1 (1979) ............................................ 10 People v. Moissett, 76 NY2d 909 (1990) .......................................... 21 People v. Morbillo, 56 AD3d 694 (2d Dept 2008) ............................. 14, 15, 30 People v. Mower, 97 NY2d 239 (2002) ........................................... 12 People v. Newbould, 83 AD3d 1570 (4th Dept 2011), lv denied, 17 NY3d 904 ......... 11, 17 People v. Nixon, 21 NY2d 338 (1967) ............................................ 22 -v- People v. Pascale, 8 NY2d 997(1980) ........................................... 15 People v. Pellegrino, 60 NY2d 636 (1983) . .. . .. . . . .. . .. . . .. . . . .. .. . . . . . . . .. . . .. .. 11 People v. Qoshja, 17 NY3d 910 (2011) ............................................ 7 People v. Seaburg, 74 NY2d 1 (1989) ............................................ 21 People v. Seeber, 4 NY3d 780 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Selilwff, 35 NY2d 227 (1974),419 US 1122 (1975) .......................... 21 People v. Silva, 220 AD2d 230 (1st Dept 1995), lv denied, 87 NY2d 977 (1996) .......... 12 People v. Tausinger, 55 AD3d 956 (3d Dept 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Toxey, 86 NY2d 725 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v. Warren, 47NY2d 740 (1979) ........................................... 11 People v. Watts, 78 AD3d 1593 (4th Dept 2010), lv denied, 16 NY3d 838 (2011) .......... 27 People v. Wilson, 299 AD2d 222 (1st Dept 2002), lv denied, 99 NY2d 566 ............... 27 STATUTES CPL 220.60 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CPL 440.10 ........................................................ 11, 17, 18,30 CPL 440.20 ................................................................. 27 CPL 450.90 (1) .............................................................. 10 PL 70.25 (2-a) ...................................................... 7, 8, 9, 12, 13, 14, 16, 17, 18, 19, 20, 23, 24, 25, 26, 27,28,30 -vi- PL 70.25 (2-b) ............................................................... 29 PL 70.25's . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Penal Law 70.25 (2-a) ......................................................... 1,2 -1- COUNTER-STATEMENT OF THE QUESTIONS INVOLVED 1. ·Does defendant present this Court with a question of law stemming from a preserved, and record-supported, involuntary guilty plea claim arising from the purported invocation of Penal Law 70.25 (2-a)'s consecutive sentencing provision for predicate offenders? · BRIEF ANSWER: No. This Court, respectfully, does not have subject matter jurisdiction to entertain the merits of defendant's plea claim because he failed to bring any kind of motion requesting that the guilty plea be set aside. The Appellate Division, although it identified preservation as an issue, did not make a specific ruling on the same and instead issued only a summary affirmance. The People maintain that preservation functions as a procedural bar to a merits review, and that defendant is not exempt from the same. In addition, and due to the lack of preservation, the record is missing key facts needed to support defendant's claim that he is subject to consecutive sentencing per Section 70.25 (2-a) as nothing is ever revealed about the outcome of any violation of his post-release supervision from his prior sentence. Without such proof, defendant cannot prove that his guilty plea was involuntary, unknowing, and unintelligent. -2- 2. In the alternative, was defendant's guilty plea to his second set of drug charges validly entered even if Penal Law§ 70.25 (2-a) is being applied against him? SUPREME COURT'S ANSWER: Presumably yes via its acceptance of the guilty plea as no motion was ever directed to it asking for resolution of the plea's validity. At sentencing, the Supreme Court did not direct that any owed time on defendant's earlier drug sentence run consecutively to the new drug and gun sentence; therefore, the issue of Section 70.25 (2-a)'s applicability was not addressed. APPELLATE DIVISION'S ANSWER: Presumably yes via its summary affirmance which should stand as Section 70.25 (2-a} is a collateral consequence of which the Supreme Court was under no obligation to warn defendant about before accepting his guilty plea. Section 70.25 (2-a) is a collateral consequence because it did not affect defendant's specific punishment for his 2007 crimes and it was also not an essential part of sentencing as the court can remain silent concerning the same. Defendant's comparison of Section 70.25 (2-a) to PRS to prove that it is a direct consequence is erroneous given this Court's explicit rejection of such an analogy. -3- STATEMENT OF THE NATURE OF THE MATTER This is a defense appeal from a Memorandum and Order, entered November 10, 2011, from the Appellate Division, Fourth Department (Peradotto {J.P.}, Carni, Lindley, Sconiers, and Green) which summarily affirmed without opinion defendant Rafael L. Belliard's ("defendant") Monroe County Supreme Court (Sirkin, A.J.) September 17, 2007, conviction after a guilty plea of Criminal Possession of a Controlled Substance in the First Degree [Penal Law ("PL") § 220.21 (1 )], Criminal Possession of a Controlled Substance in the Third Degree [PL 220.16 (1 )], and Criminal Possession of a Weapon in the Second Degree [PL 265.03 (3)] via Indictment Number 57A/07- all stemming from a drug investigation (Record ["R."]8-10, 67-71). See also People v. Belliard, 89 AD3d 1443 (41h Dep't 2011 ). Defendant was sentenced - as a second felony drug offender- to a total of 12 years in state prison with 5 years of post-release supervision ("PRS") (R. 10, 16, 91 ). A stay has not been granted pursuant to Criminal Procedure Law ("CPL") § 460.50; thus, defendant is currently incarcerated. Associate Judge Susan Phillips Read granted leave to appeal on March 5, 2012 (R. 2). See also People v. Belliard, 18 NY3d 955 (2012). -4- COUNTER-STATEMENT OF THE FACTS Drug Crimes On the late evening and early morning of December 13-14, 2006, a confidential informant was working with the Rochester Police Department ("RPD") (R. 67). The informant - who was wired - arranged a controlled buy of a half of a kilogram of cocaine from the target of a drug investigation - Jesus F. Perez ("Perez") (R. 68, 71 ). As the informant was inside a car with Perez and defendant - a predicate drug felon -the police stopped the car (R. 68). A half of a kilogram of cocaine was found hidden in a trap compartment inside the car (R. 29, 68, 70-71). A gun was also discovered in the car (R. 68). After his arrest, defendant confessed to the police to distributing cocaine, and heroine, he received from a source in New York City (R. 39, 43- 44). Procedural History As a result of his admitted misdeeds, defendant - and Perez - were indicted together for 2 forms of drug possession and also weapons possession (R. 11-15). Defendant was arraigned in Monroe County Court before Judge Geraci and entered a not guilty plea (R. 17 -18). At arraignment, defense counsel -5- noted that defendant was "currently detained on New York state parole and Judge Larimer [in federal court]" (R. 19). The matter was transferred to another judge for trial in Supreme Court (R. 32; see also R. 1, 2, 7, 8, 88). At the start of the jury trial, the trial court delivered its Sandoval ruling allowing the People to cross-examine defendant should he testify concerning a state court drug conviction (R. 34-35). It is unclear if the conviction was from 2001 or 2002 (R. 34). Defendant also had federal drug convictions (R. 34-35). Guilty Plea At the second day of the jury trial, and after the People's first witness, defense counsel advised the trial court that defendant wished to plead guilty (R. 79-80). More specifically, defense counsel noted a previous plea offer to the top count of the indictment in exchange for a sentence promise of 12 years in prison "which would be running concurrent with any federal and state violations of parole and probation" (R. 79). Given the late date, the People required a plea to the entire indictment, not just the top count, and also noted that defendant would be a second felony offender (R. 80, 81 ). Defense counsel again noted that the sentence would be concurrent to any federal -6- time for defendant's violation of his supervised release (R. 80). When asked about the plea offer, defendant questioned only any good time credit and federal probation (R. 81-83). The trial court then engaged in a rights colloquy (R. 82-83). Defendant then admitted his guilt on every count (R. 83-85). Sentencing Defendant was adjudicated a second felony drug offender (R. 16, 89- 90). The Second Felony Drug Offender Information noted that defendant had 13: state drug conviction from March 10, 2003, and that he was re-sentenced on June 1, 2006, to a straight 3 years in prison with the addition of 5 years of PRS (R. 16). Defense counsel asked that the impending state sentence run concurrently with a federal probation violation sentence imposed that same morning (R. 91 ). Nothing was said about a state PRS violation outcome. Defendant was sentenced to a total of 12 years in prison with 5 years of PRS (R. 91 ). Neither at sentencing, or in the Certificate of Conviction, is there an instruction requiring defendant's new sentence to run consecutive to any discharged state prison time (R. 10, 91 ). Defendant pursued an appeal to the Fourth Department (R. 8-9). -7- Fourth Department Proceedings On appeal, defendant attacked his guilty plea by claiming for the first time that it was allegedly infirm due to his failure to be advised that his new sentence would run consecutively to a purported undischarged sentence prison term per PL 70.25 (2-a). The People opposed the appeal contending that defendant's new claim was procedurally barred as it arose from matters outside the scope of the appellate record. The issue of preservation was also broached at oral argument as an additional possible procedural hurdle. The Fourth Department summarily affirmed without an opinion (R. 8-9). See also Bel liard, 89 AD3d 1443. As a result, it is unclear on what basis the Fourth Department upheld defendant's conviction - either on procedural grounds or on the merits, including a potential interests of justice review. This could potentially affect this Court's subject matter jurisdiction. See e.g. People v. Qoshja, 17 NY3d 910 (2011) (remanding matter to the Appellate Division to clarify its summary affirmance with an explanation in order to decipher whether or not the case can be heard by the Court of Appeals). -a- Defendant applied for leave to appeal to this Court, and successfully obtained said permission from Associate Judge Read over the People's opposition (R. 2). The Fourth Department's affirmance should not be disturbed because: (1) defendant's PL 70.25 (2-a) plea claim is not preserved for appellate review as he admittedly never moved against his conviction; and, (2) the plea claim is also beyond this Court's review powers as it emanates from an incomplete appellate record caused by defendant's inaction and ensuing lack of preservation. In the alternative, and should the Court reach the merits of defendant's plea claim, the People respectfully submit that the invocation of PL 70.25 (2- a) is not a direct consequence of defendant's guilty plea. -9- ARGUMENT Point I DEFENDANT'S PL 70.25 (2-a) PLEA CONTENTION IS NOT PROPERLY BEFORE THIS COURT AS IT IS NOT ONLY UN PRESERVED BUT ALSO INCORRECTLY PREMISED UPON PRESUMED MATTERS WHICH DEHORS THE APPELLATE RECORD. The merits of defendant's PL 70.25 (2-a) plea argument, respectfully, cannot be reached by this Court as it does qualify as a reviewable question of law per the CPL. As noted at oral argument before the Fourth Department, and in the People's leave opposition letter, defendant's appeal suffers from two inter-related and fatal procedural flaws, namely lack of preservation and also improper reliance on non-record assumed facts. Either flaw standing alone warrants summary rejection of defendant's appeal for the reasons set forth below. A. Defendant's untimely PL 70.25 (2-a) plea assertion is not preserved for appellate review and is further not exempt from the preservation requirement for any reason. Defendant's belated PL 70.25 (2-a) guilty plea submission is not properly postured for appellate review given a clear lack of preservation which is not excusable under any legal principle. See e.g. People v. Adams, 46 NY2d 1047, 1048 (1979) (attack on guilty plea was not reviewable as it was unpreserved). -10- This Court's review powers are limited to questions of law, meaning issues that have been preserved for appellate consideration by way of a protest thereto. See CPL 450.90 (1); 460.20 (1 ); 470.05 (2) & 470.35; People v. Baumann & Sons Buses, 6 NY3d 404, 406-407 (2006) (dismissing appeal concerning unpreserved claim); Karger, Powers of the New York Court of Appeals§ 1:3, at 9 (3d ed rev). 'The requirement that a claim must be timely raised in order to create a question of law is grounded in large part in the need to preserve limited judicial resources and avoid untoward delay in the resolution of criminal proceedings." People v. Michael, 48 NY2d 1, 6 (1979). As this Court has further decreed: when a defendant neglects to raise a particular legal argument before the court of first instance, he effectively deprives the People of a fair opportunity to present their proof on that issue, and, as a consequence, the resulting record is inadequate to permit the appellate court to make an intelligent determination on the merits. Moreover, our rule of "preservation" requires defendants to raise all of their arguments in a timely fashion so that errors of law which might otherwise necessitate a retrial can be avoided or promptly cured. People v. Martin, 50 NY2d 1029, 1031 (1980) (the defendant was foreclosed from raising a constitutional challenge not made before the original court) (emphasis added). -11- Thus, if a defendant seeks on appeal to undo a guilty plea as allegedly involuntary, the purported shortcoming must be preserved. See People v. Claudio, 64 NY2d 858 {1985) (affirming conviction because the defendant failed to preserve guilty plea contention). Preservation is accomplished by either moving to withdraw the guilty plea under CPL 220.60 (3) or moving to vacate the judgment of conviction via CPL 440.10. See People v. Warren, 47 NY2d 740, 741 {1979) {by not raising plea issue in motion before the plea court, the alleged error was not preserved for review). Here, defendant Belliard did not fulfill the preservation mandate. See e.g. People v. Pellegrino, 60 NY2d 636 (1983) (the defendant's contention that he should be relieved of his guilty plea was not preserved). Although a motion to withdraw his guilty plea before sentencing may have been impractical, nothing relieved defendant of the obligation to seek relief pursuant to CPL 440.10. Despite there being no impediment to a CPL 440.10 motion, defendant never brought one to challenge the soundness of his guilty plea. Without such a post-sentencing motion, thereby developing the record concerning both the purported undischarged 2003 sentence and the supposed consecutive nature of the 2007 sentence, defendant's plea claim is wholly unpreserved. See e.g. People v. Newbould, 83 AD3d 1570, -12- 1571 (4th Dept 2011) (defense plea claim regarding consecutive sentencing was unpreserved), lv denied, 17 NY3d 904; People v. Lagas, 76 AD3d 384, 385-387 (3d Dept 2010) (PL 70.25 (2-a} plea claim was not preserved), lv denied, 16 NY3d 744 (2011), recons denied, 16 NY3d 860; 1 People v. Silva, 220 AD2d 230, 231 (1st Dept 1995) (plea claim concerning consecutive sentences was not preserved), lv denied, 87 NY2d 977 (1996}; People v Marrow, 95 AD2d 839 (2d Dept 1983) (the defendant failed to preserve his claim that his guilty plea sentence was directed to run consecutively in alleged violation of the plea agreement). Defendant should not be exempted from the preservation rule per People v. Lopez, 71 NY2d 662 (1988). See e.g. People v. Mower, 97 NY2d 239, 246 (2002) (plea revealed no defect that would permit Court of Appeals review of unpreserved plea claim). Defendant's utterances did not engender a clearly "significant doubt" on the voluntariness of his plea; therefore, his plea allocution does not qualify for the narrow, "rare case" exception to the preservation doctrine described in Lopez. Courts have been reluctant to apply the Lopez exception in all but the most egregious cases. See e.g. 1 Lagas expressly overruled People v. George, 59 AD3d 858 (3d Dept 2009) on the need for preservation for a PL 70.25 (2-a) plea claim. See Lagas, 76 AD3d at 385- 387. Accordingly, defendant's reliance on George is misplaced (Defendant's Appellate Brief {"Def. App. Br."}, p. 32). -13- People v. Toxey. 86 NY2d 725, 726 (1995) (the defendant's plea argument was not preserved and did not qualify for Lopez exception to the preservation requirement), rearg denied, 86 NY2d 839. This is not one of those cases. See e.g. People v. Clark, 93 NY2d 904, 906 (1999) (refusing to invoke Lopez exception to address the merits of the defendant's guilty plea claims). Defendant attempts to evade the damming impact of the preservation rule by likening his claim to a Catu-type error in the PRS context (Def. App. Br., pp. 25, 26). See People v. Catu, 4 NY3d 242 (2005) (failure to advise the defendant about PRS rendered his guilty plea invalid). However, this attempt is unavailing because the issue here cannot be classified as a Catu-type error as this Court has specifically ruled. As defendant admits (Def. App. Br., p. 29), this Court expressly rejected an analogy between a failure to advise about PRS and the failure to advise about legally-mandated consecutive sentences per PL 70.25 (2-a). See People ex rei. Gill v. Greene, 12 NY3d 1, 5 (2009), cert denied, 130 S Ct 86. In Gill, the petitioner sued to undo his consecutive sentences imposed by the Department of Correctional Services ("DOCS") when the sentencing court did not specifically declare that his new sentence would run consecutive to a prior undischarged term as required by PL 70.25 (2-a). Gill, 12 NY3d at 4-5. -14- Petitioner Gill likened the error to failure to pronounce PRS thereby prohibiting DOCS from taking any action. This Court disagreed and held that "the analogy Gill draws between consecutive sentencing and PRS is flawed." Gill, 12 NY3d at 5. As a result of the above unequivocal ruling, defendant Belliard's use of Catu, and other PRS cases, in an effort to extricate himself from his preservation problem falters. Consequently, defendant's cases of People v. Boyd, 12 NY3d 390 (2009), People v. Hill, 9 NY3d 189 (2007), and People v. louree, 8 NY3d 541 (2007) are all inapposite and thus do no exonerate defendant from his preservation obligation - an obligation he failed to fulfill (Def. App. Br., pp. 11, 13, 26, 39). Also given Gill's unambiguous wording, People v. Morbillo, 56 AD3d 694 (2d Dept 2008) is no longer good law (Def. App. Br., pp. 11, 26, 32, 35, 39). Compare with Marrow, 95 AD2d 839. In Morbillo, the Second Department switched from its prior ruling in Marrow and did not require preservation of a PL 70.25 (2-a) plea claim citing Hill, Louree, and Catu. See Morbillo, 56 AD3d at 695. As already noted, making a PL 70.25 (2-a) plea claim akin to a PRS error is now legally unsustainable in light of Gill. See Gill, 12 NY3d at 5. Therefore, Morbillo's preservation holding is not persuasive authority. -15- Furthermore, Morbillo is additionally factually distinguishable. In Morbillo, that defendant was informed at sentencing that the new sentence would be consecutive to an old, undischarged sentence and objected to the same. See Morbillo, 56 AD3d at 694. Unlike Morbillo, in defendant Belliard's case the record is not developed on the 2003 drug sentence and there was no protest in the form of a post-conviction motion. Accordingly, the material factual differences in Morbillo do not change the conclusion that defendant Belliard's plea claim is not preserved. Lastly, and because preservation directly impacts this Court's subject matter jurisdiction, the Fourth Department's failure to address the issue in its summary affirmance does not prohibit the People from raising the same as a procedural defect preventing a review on the merits. In sum, defendant has no recourse before this Court given his failure to preserve his plea claim for appellate review - a failure which is not excused under any legal doctrine. See e.g. People v. Pascale, 8 NY2d 997 (1980) (the defendant's submission that he should be relieved of his guilty plea was not raised by motion in the court of first instance and thus was not preserved). -16- B. Defendant's extra-record PL 70.25 (2-a) plea claim is not reviewable by this Court without improperly resorting to guess-work. Besides a lack of preservation, the thrust of defendant's appeal has it genesis in matters outside the scope of the record which are not proper subjects of appellate consideration by this, or any, appellate court. See e.g. People v. Cass, 18 NY 3d 553, 556 (2012) (prose defense claim that involved matters which are dehors the record are not reviewable). As in Cass, this Court should likewise refuse to entertain on the merits defendant Belliard's plea claim as it is not fully borne out by the record. This Court recognizes that a preservation lapse results in an inadequate record for meaningful appellate review. See Martin, 50 NY2d at 1031. In fact, this Court has cautioned against making determinations on less than a fully developed evidentiary record wherein both sides have had a chance to explore the facts and argued the law. See People v. Knapp, 57 NY2d 161, 174-175 (1982). This is to avoid basing legal decisions on speculation. See People v. Kim, 91 NY2d 407, 412 (1998) (refusing to address speculative defense claim that was not contained in the record). Following the above rationale, this Court should, respectfully, refrain from reviewing on the merits defendant Belliard's conjectural plea claim. -17- Due directly to defendant Belliard's inaction in not interposing a CPL 440.10 motion, there is no concrete proof in the record that the 2003 sentence was, in fact, undischarged. Defendant even concedes some evidentiary lapses in his brief (Def. App. Br., pp. 17, 23). Most importantly, defendant acknowledges that the "record does not reflect whether Mr. Belliard received a time assessment for violating the conditions of his PRS" (Def. App. Br., p. 23). See e.g. Newbould, 83 AD3d at 1571 (rejecting PL 70.25 (2-a) plea contention because the defendant "failed to establish that he had an undischarged sentence to which the sentence imposed ... would be served consecutively''). Defendant, however, goes on to improperly surmise potential outcomes (Def. App. Br., p. 23). Such surmising is improper and does not justify a review of the merits of defendant's claim. Even though the Second Felony Drug Offender Information notes a re- sentencing date of June 1, 2006, to add 5 years of PRS, the record is totally devoid of the outcome of any violation proceeding arising from his new crimes in December 2006 (R. 16).2 In turn, there is no proof before this Court that defendant was sanctioned with extra time for the PRS infraction thereby triggering PL 70.25 (2-a). Had a CPL 440.10 motion been made, the facts 2 The version of the Second Felony Offender Drug Information contained in the Appendix provided by defendant is incomplete (R. 16). -18- could have been explored in order to assess the actual, as opposed to suspected, impact of defendant's alleged PRS non-compliance. See e.g. People v. Fuller, 28 Misc3d 1144 (NY Co Sup Ct 201 0) {the defendant pursued a CPL 440.1 0 motion to assail PL 70.25 (2-a)'s purported impact on his guilty plea, but motion was denied) (Def. App. Br., pp. 31, 35). Without such a motion, this Court is left with only suppositions which are invalid grounds for awarding appellate review and ultimate relief (Def. App. Br., pp. 17-18). Defendant's other attempts to draw inferences from the record are also wholly insufficient to support his plea contention. For example, defendant's reference to the fact that the arraigning judge in County Court knew about the "state parole" detainer does nothing to show the result of the detainer (Def. App. Br., pp. 5, 18). Moreover, that was not even the same judge or court that ultimately took defendant's plea and sentenced him (compare R. 17-19 with R. 1, 2, 7, 8, 32, 88). Therefore, defendant's suggestion that Acting Justice Sirkin "should have· known" about the supposed undischarged sentence is entirely inadequate to warrant a merits review, or a reversal (Def. App. Br., pp. 11, 18, 29). -19- Additionally neither the Sandoval ruling, nor the reference to a "state violation of parole" at the time of plea, prove what, if anything, actually happened to defendant (Def. App. Br., pp. 5, 18). Rather, defendant implores this Court to draw certain assumptions from those items. Assumptions are simply improper predicates for appellate remedies. As an extension of the above record problem, there is also no proof that defendant's 2007 sentence was set to run consecutively. That may be presumed by operation of PL 70.25 (2-a), but again, presumptions are not valid grounds for further appellate review. It was another evidentiary issue which required exploration via a CPL Article 440 motion. Defendant's failure to do so functions as a barrier to a merits review. Finally, all of the preceding record troubles are exacerbated by the Fourth Department's summary affirmance (R. 8-9). In all, and due to the incomplete state of the record, defendant cannot contest the propriety of his guilty plea and is bound by the same. In conclusion of this entire Point: (1) defendant's PL 70.25 (2-a) plea claim was never preserved for appellate review thereby negating this Court's subject matter jurisdiction; and, (2) the record being bereft of any evidence concerning an alleged PRS violation re-sentencing fails to trigger a PL 70.25 -20- (2-a) claim. Without proof that defendant fell under the scope of PL 70.25 (2- a), he cannot use that provision to escape from his guilty plea. Point II THE FOURTH DEPARTMENT'S AFFIRMANCE SHOULD STAND BECAUSE CONSECUTIVE SENTENCING VIA PL 70.25 {2-a) WAS NOT A DIRECT CONSEQUENCE OF DEFENDANT'S 2007 PLEA DEAL. Should this Court decide against the People on the above procedural objections, a reversal is still not mandated even if defendant was subjected to PL 70.25 (2-a)'s consecutive sentencing provision. Defendant attacks his guilty plea conviction claiming that is was rendered involuntary by virtue of not being advised of the impact of PL 70.25 (2-a), a purported direct consequence of his conviction (Def. App. Br., pp. 11-39). Defendant incorrectly classifies PL 70.25 (2-a) sentencing as a direct consequence because it did not at all enlarge his 2007 sentence. Therefore, the Supreme Court did not run afoul of its obligation to ensure that defendant's guilty plea was knowing and intelligent. Defendant was afforded due process and thus cannot now complain that his guilty plea was entered in ignorance of its direct repercussions - of which PL 70.25 (2-a) was not one. -21- A. Plea bargaining law. The starting place for analyzing defendant's contention is to recognize that both this Court and the United States Supreme Court have, for decades, recognized not only the necessity of plea bargaining in the criminal justice system, but also the benefits to both the defendant and the prosecutor that result from criminal matters being disposed of as a result of a negotiated plea bargain. See Santobello v. New York, 404 US 257 (1971 ); People v. Selikoff, 35 NY2d 227 (1974), cert denied, 419 US 1122 (1975). Therefore, a guilty plea "marks the end of a criminal case [and is] not a gateway to further litigation." People v. Alexander, 97 NY2d 482, 485 (2002). See also People v. Seaburg, 74 NY2d 1, 8-10 (1989) (plea bargains "should signal an end to litigation, not a beginning"). "Exceptions to this principle have been limited." People v. Green, 75 NY2d 902, 907 (1990), cert denied, 498 US 860 (1990). Although a permissible means of ending litigation, for a guilty plea to be enforceable, it must have been voluntarily, knowingly, and intelligently made. See Brady v. United States, 397 US 742, 748 (1970) (the defendant's guilty plea was valid); People v. Moissett, 76 NY2d 909, 910-911 (1990). In assessing whether or not a plea was knowing, intelligent and voluntary, a court must assess several factors, which include: "the nature and terms of the -22- agreement, the reasonableness of the bargain and the age and experience of the accused." People v. Garcia, 92 NY2d 869, 870 (1998). However, "[t]his Court has consistently rejected a formalistic approach to guilty pleas preferring instead to leave the ascertainment of whether the defendant has entered the plea voluntarily, knowingly and intelligently to the trial court's 'sound discretion exercised in cases on an individual basis."' People v. Fiumefreddo, 82 NY2d 536, 543 (1993) (affirming guilty plea) (internal citation omitted). See also People v. Seeber, 4 NY3d 780, 781 (2005) (keeping guilty plea intact). A vacatur of the plea is not required if there was no suggestion in the record that the plea was improvident or baseless. See People v. Nixon, 21 NY2d 338, 350 (1967) (upholding guilty plea). For a plea to be provident, the defendant must be fully aware of its direct consequences. See Brady, 397 US at 755. However, as this Court has decreed: Manifestly, a criminal court is in no position to advise on all the ramifications of a guilty plea personal to a defendant. Accordingly, the courts have drawn a distinction between consequences of which the defendant must be advised, those which are "direct", and those of which the defendant need not be advised, "collateral consequences" . . . A direct consequence is one which has a definite, immediate and largely automatic effect on defendant's -23- punishment. People v. Ford, 86 NY2d 397, 403 (1995) (upholding guilty plea) (internal citations omitted and emphasis added). See also People v. Latham, 90 NY2d 795, 798 (1997) (reinstating guilty plea conviction). This Court has further explained the above distinction between the types of consequences s follows: Consequences that are "peculiar to the individual's personal circumstances and ... not within the control of the court system" have been held to be collateral . . . The direct consequences of a plea-those whose omission from a plea colloquy makes the plea per se invalid-are essentially the core components of a defendant's sentence: a term of probation or imprisonment, a term of post-release supervision, a fine. Our cases have identified no others. We held in Ford and Gravino that consequences that may be quite serious - possible deportation in Ford, Sex Offender Registration Act (SORA) requirements and onerous terms of probation in Gravino- are collateral. People v. Harnett, 16 NY 3d 200, 205-206 (2011) (sustaining guilty plea conviction despite SOMTA consequence) (emphasis added). Based upon the above law, consecutive sentencing per PL 70.25 (2-a) is not a direct consequence of defendant's 2007 plea as it did not at all alter that discrete sentence, and was further not a required part of the sentence -24- pronouncement and could be left to DOCS to implement. B. PL 70.25 (2-a) should not be categorized as a direct consequence because it had no impact upon defendant's 2007sentence as he received the bargained-for arrangement. Defendant's alleged violation of PRS by committing the instant crimes may have triggered PL 70.25 (2-a}, but that provision had no affect on his 2007 plea sentence. In the absence of a direct affect on the 2007 sentence, defendant cannot undo his negotiated guilty plea at this late conjuncture. See ~ Wilson v. McGinnis, 413 F3d 196, 200 (2d Cir 2005) (the defendant's plea was not rendered involuntary by the failure of the court to advise him that his sentence would run consecutive to a prior undischarged sentence). As in Wilson, defendant Belliard should remain subject to this guilty plea. For starters, the subject Penal Law provision provides that: When an indeterminate or determinate sentence of imprisonment is imposed pursuant to section 70.04, 70.06, 70.07, 70.08, 70.10, subdivision three or four of section 70. 70, subdivision three or four of section 70.71 or subdivision five of section 70.80 of this article, or is imposed for a class A-I felony pursuant to section 70.00 of this article, and such person is subject to an undischarged indeterminate or determinate sentence of imprisonment imposed prior to the date on which the present crime was committed, the court must impose a sentence to run consecutively with respect to such undischarged -25- sentence. PL 70.25 (2-a). As this Court has taken note of, the sentencing court does not need to actually pronounce a consecutive sentence. See Gill, 12 NY3d at 6. This Court further explained that "[n]othing in the statute even requires that the sentencing court be made aware that the prior sentences are undischarged." See Gill, 12 NY3d at 6.3 Due to this, DOCS has the authority to structure the sentences consecutively when the sentencing court is silent. See Gill, 12 NY3d at 6-7. Accordingly, compliance with PL 70.25 (2-a) is not the exclusive responsibility of the sentencing court. This is an important factor weighing against a finding that PL 70.25 (2-a)'s provision is a direct consequence of a guilty plea. See Harnett, 16 NY3d at 205-206 (consequences "not within the control of the court system have been held to be collateral"). Also, consecutive sentencing is not peculiar to defendant Belliard's personal circumstances as it applies to a broad categories of defendants with 3 This language in Gill creates a practical problem for defendant's position. If the sentencing court need not be aware of a undischarged sentence, how is it supposed to advise a defendant of the ramifications of PL 70.25 (2-a)? By adopting defendant Belliard's contention, another layer o(automatic advisements will have to be added in every single plea thereby needlessly adding to the mechanisms of securing a valid guilty plea and making the same more complex. Contrary to defendant's claim, this would be an unreasonable burden (Def. App. Br., pp. 36-37}. -26- predicate crimes. See Harnett, 16 NY3d at 205-206, Furthermore, and perhaps most importantly, PL 70.25 (2-a) did not enhance defendant's 2007 punishment. See Ford, 86 NY2d at 403. The terms of defendant's 2007 sentence remained the same, i.e., defendant received the benefit of his bargain. The fact that defendant still had to face the consequences of his PRS violation cannot be used to invalidate the 2007 plea. See Harnett, 16 NY3d at 205-206 (although a consequence may be serious, it can still be collateral). Such a result would be an unjust windfall to defendant Belliard who has been repeatedly unable to abide by the law. Contrary to defendant's contention (Def. App. Br., pp. 25, 26), a failure to advise about PL 70.25 (2-a) cannot be equated with a failure to advise about PRS. PRS is a "component element of a sentence" which must be pronounced at sentencing and thus is "an integral part of the punishment meted out upon a defendant's conviction of a crime." People v. Gravino, 14 NY 3d 546, 556 (201 0) (keeping guilty pleas intact because SORA adjudication was a collateral consequence, unlike PRS) (emphasis added). See also People v. Cornell, 16 NY3d 801, 802 (2011) (PRS is a required part of the sentence imposed for the underlying conviction). Unlike PRS, and as noted above, PL 70.25 (2-a)'s consecutive provision need not be addressed -27- at sentencing and can be left to DOCS to administer. See Gill, 12 NY3d at 6- 7; People v. Wilson, 299 AD2d 222 W' Dept 2002) (requirement of consecutive sentencing with a prior undischarged prison term "was a statutory mandate and not a part of the plea agreement"), lv denied, 99 NY2d 566; People v. Johnson, 183 AD2d 573 (1st Dept 1992) (same), lv denied, 80 NY2d 905. As such, PL 70.25 (2-a)'s provision, if applicable, was not "an integral part of the punishment meted out upon a defendant's conviction of a crime." Gravino, 14 NY3d at 556. As it was in the preservation context, PL 70.25 (2- a) cannot be analogized to PRS. See Gill, 12 NY3d at 5. Moreover, there is nothing in the record to suggest that defendant was promised that a PRS violation finding would be nullified. See Gill, 12. NY 3d at 6; People v. Boyer, 91 AD3d 1183, 1184 (3d Dept 2012) (affirming the rejection of a PL 70.25 (2-a) plea claim brought by way of a CPL 440.20 motion); People v. Watts, 78 AD3d 1593 (41h Dept 201 0) (disagreeing with the defendant that PL 70.25 (2-a) caused his guilty plea to be invalid), lv denied, 16 NY3d 838 (2011 ). It is acknowledged that defense counsel, not the court or the People, mentioned that the 2007 sentence would run current to state and federal parole violations (R. 79) (Def. App. Br., pp. 8, 12, 26).4 However, 4 Defendant did not reference this "unlawful pre-trial plea offer" in his brief to the Fourth Department [which implies an ineffective assistance claim]; thus, it is not a -28- and even presuming that defense counsel was referring to the PRS violation, the defendant could not, as a matter of law, have relied upon that legally impossible and inaccurate statement. See e.g. People v. Marrow, 95 AD2d 839 (2d Dept 1983) (the prosecutor's promise of concurrent sentences in violation of PL 70.25 (2-a) was a nullity and the defendant was, as matter of law, prohibited from relying upon the same in his plea decision). As in Marrow, it cannot be said that defendant was mislead about the terms of his guilty plea. On a related note, concurrent sentencing for the state PRS violation was never broached at sentencing. The only concurrent sentence statements concerned the federal probation violation (R. 91; see also R. 80 {noting only federal probation}). This reinforces the fact that defendant did not expect a concurrent sentence with the old state sentence. Another faulty proposition of defendant's is that PL 70.25's sub-divisions should be split between direct and collateral consequences (Def. App. Br., pp. 28-29). Such divvying up on single statute seems illogical. In support of this proposal, defendant notes that the Second Circuit's decision in Wilson preserved line of argument. In addition, defendant did not argue that the court and/or the People erred by not correcting the same (Def. App. Br., pp. 38-39). Defendant should not be awarded relief on newly devised grounds. -29- involved PL 70.25 (2-b), not (2-a), and thereby tried to distinguish Wilson on that basis (Def. App. Br., pp. 28-29). Even though Wilson dealt with a different subdivision -one which is also mandatory given the "shall" language but included a limited exception - its underlying legal analysis remains applicable. In Wilson, the Second Circuit re-visited its decision in United States v. Parkins, 25 F3d 114 (2d Cir 1994) in which it addressed federal and state sentences being set to run consecutively and the impact, if any, on a guilty plea. See Wilson, 413 F3d at 199. The Second Circuit in Wilson upheld its prior decision that the imposition of a "consecutive sentence is not a direct consequence of a plea because, while the federal statute requiring the federal and state sentences to be consecutive 'may in effect lengthen [the defendant's] time in jail, it does not lengthen the federal sentence, or directly affect it in any other way."' Wilson, 413 F3d at 199 (citing Parkins, 25 F3d at 118). As condoned in both Wilson and Parkins, defendant Belliard's overall jail time might have been enlarged by consecutive sentences, but his 2007 sentence, standing alone, was left untouched. This is the hallmark of a collateral consequence, and the Second Circuit has rejected overall prison time as a demarcation for a direct consequence. See Wilson, 413 F3d at 200 ('The two sentences were not contingent on one -30- another, and it is inaccurate to assert ... that one sentence was increased by imposition of the other"). Lastly, defendant's case-law does not necessitate a reversal. In particular, and as argued before, defendant's PRS cases from this Court are inapplicable given the Gill decision (Def. App. Br., pp. 11, 13, 26, 39). See Gill, 12 NY3d at 5. For that same reason, Morbillo - which was premised upon those Court of Appeals PRS cases- is likewise no longer good law (Def. App. Br., pp. 11, 26, 32, 35, 39). The same is also true for People v. Tausinger, 55 AD3d 956 (3d Dept 2008) (Def. App. Br., p. 32). Defendant's major cases thus not support his legal stance. Although not cited by defendant, research revealed the case of People v. Bobo, 41 AD 3d 129 (1 "1 Dept 2007) in which the Appellate Division, after a CPL 440.1 0 motion, vacated a guilty plea due to a failure to advise about PL 70.25 (2-a) citing Catu. Unlike Bodo, there was no CPL 440.10 motion in the case at bar to set the record straight, but more importantly and as with Morbillo, Bobo is not valid legal authority in light of Gill which was decided thereafter. Bobo therefore does not compel a reversal. In conclusion of this entire Point, any consecutive sentencing was a collateral consequence thereby relieving the court from any duty to advise -31- defendant of the same before accepting his guilty plea. CONCLUSION Based upon all of the foregoing, the People respectfully request that the Fourth Department's Memorandum and Decision be upheld thereby permitting defendant's judgment of conviction to remain affirmed. DATED: June, 2012. Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney Respondent BY: Leslie E. Swift, Esq. Senior Assistant District Attorney 47 South Fitzhugh Street Rochester, New York 14614 Direct Dial: (585) 753-4564 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- RAFAEL L. BELLIARD, Appellant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Linda Gordon, being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen (18) years and resides at Rochester, New York. That on the 15th day ofJune, 2012, deponent served three (3) copies ofBrief for Respondent and one copy of the CD upon David R. Juergens, Esq., Assistant Public Defender, attorney for appellant in this action at 10 N. Fitzhugh Street, Rochester, New York 14614, by depositing a true copy of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. Sworn to before me this 15th day of June, 2012. LINDA GORDON STATE OF NEW YORK* COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- PDF CERTIFICATION RAFAEL L. BELLIARD, Defendant-Appellant. !,LESLIE E. SWIFT, ESQ., certify that I am an attorney admitted to practice in the State of New York, and that I compared the PDF brief and it is identical to the filed original printed materials. DATED: June 14, 2012 LESLIE E. SWIFT, ESQ.