The People, Respondent,v.Adam Crowder, Appellant.BriefN.Y.January 14, 2015TO BE ARGUED BY: Lee Kindlon TIME REQUESTED: 10 Minutes NEW YORK STATE COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- ADAM CROWDER, Appellant, APPELLANT'S BRIEF May 8, 2014 KINDLON SHANKS and ASSOCIATES Lee C. Kindlon Attorneys for Appellant Adam Crowder 74 Chapel Street Albany, New York 12207 (518) 434-1493 Fax: (518) 432-7806 TABLE OF CONTENTS Table of Authorities . Certificate Granting Leave People v. Adam Crowder, 110 AD3d 1384 (3' Dep't 2013) .. A-1 A-2 Indictment Excerpts from pre-plea conference . Excerpts from plea .. Excerpts from Sentencing in Absentia . Excerpts from Sentencing Confirmation. Statement of conviction A-7 A-9 A-30 A-35 A-17 A-41 TABLE OF A UTHORITIES NY Cases: 1) People v. Catu, 4 NY3d 242 2) People v. Cornell, 16 NY3d 801 3) People v. Ford, 86 NY2d 397. 4) People v. Louree, 8 NY3d 541 5) People v. McAlpin, 17 NY3d 936. 6) People v. Murray, 15 NY3d 725 (2010) 7) People v. Rucker, 67 A.D.3d 1126 . 8) People v. Borges, 103 AD3d 747 (2" Dep't 2013) . 9) People v. Chander, 113 AD3d 697 (2" Dep't 2014) 10) People v. Crowder, 110 AD3d 1384 (3' Dep't 2013). 11) People v. Pett, 77 AD3d 1281 (4' Dep't 2010) . 12) People v. Turner, 107 AD3d 1543 (4' Dep't 2013) . 6,7 6, 8, 9 7,8 10 10 10 10 Federal Cases: 1) North Carolina v. Alford, 400 US 25 (1970) . PRELIMINARY STATEMENT On April 21, 2011, Appellant Adam Crowder entered a plea of guilty to a single count of Attempted burglary in the second degree. During the plea colloquy, the trial court only mentioned a period of incarceration but did not mention a term of postrelease supervision, even thought both were direct consequences of his plea. On July 28, 2011, Mr. Crowder was sentenced to a period of incarceration plus a period of postrelease supervision. On October 31, 2013, the Appellate Division, Third Department affirmed Adam Crowder's conviction. He applied to the Court of Appeals for Leave to Appeal. On March 10, 2014, Leave was granted. QUESTION PRESENTED 1. W het her the Appellate Division erred in holding that the defendant's plea was knowing and voluntary given that the trial court failed to advise the defendant of his term of post release supervision during the plea colloquy. STATEMENT OF FACTS Appellant Adam Crowder entered a plea of guilty on April 21, 2011 to Attempted Burglary in the second degree. (A-19-25) A few days prior, on the record, the trial court judge had laid out the terms of the plea, at which time a period of incarceration and a period postrelease supervision were both mentioned. The trial court told the defendant that he faced a two-year sentence and a range of one and a half to three years of postrelease supervision. (A-10) During the plea colloquy, however, the trial court only stated that Mr. Crowder was set to receive the aforementioned two-year determinate term of incarceration but did not mention a term of postrelease supervision, even though both were direct consequences of his plea. (A-21) The court, during the plea, stated that if he tested positive for drugs or "took off or got involved in something else," then the court would not be bound by the plea agreement and could instead impose the maximum sentence which was seven years. (A-18) The court warned Mr. Crowder four separate times during this hearing about the consequences for breaching the terms of the plea during this post plea period. (A-19, 27-28) These mentioned consequences included only the threat of an increased determinate period of incarceration of up to seven years. (A-19, 27-28) The court did not mention any other possible consequence, including postrelease supervision. (A-19, 27-28). Appellant's sentencing hearing was scheduled for July 15, 2011. (A-28) Mr. Crowder was known to have a drug habit and had turned himself into a rehabilitation facility in order to attempt to stay clean prior to sentencing. (A-35-38) Crowder, however, failed to inform anyone of his whereabouts and failed to appear at sentencing. (A-35) The defense was given two weeks to find him but was unsuccessful. (A-30-31) On July 28, 2011, when Crowder again failed to appear at the appointed place and time, the court sentenced him, in absentia, to an enhanced sentence of five years determinate incarceration and imposed the maximum three-year period of postrelease supervision. (A-34) As the court imposed the sentence on July 28, 2011, it mentioned the period of postrelease supervision, briefly, for the first time just prior to its decision. (A-34) That is, although there was a short discussion during the pre-plea conference, there was no further mention of the postrelease component of the sentence until that sentence was imposed. (A-34) When Appellant appeared on August 17, 2011, the sentence of five years plus three years PRS that had been set in absentia was confirmed by the court, at which time defense counsel again objected to the imposition of a greater sentence. (A-40) The judge confirmed the previously imposed sentence of five years plus three years of PRS. (A-40) The court denied the objection to the enhancement and the sentence stood as ordered. (A-40) ARGUMENT POINT I MR. CROWDER DID NOT MAKE A VOLUNTARY, KNOWING AND INTELLIGENT GULTY PLEA WHEN THE COURT SENTENCED HIM TO A TERM OF POST RELASE SUPERVISION THAT WAS NOT MENTIONED AT THE PLEA When Mr. Crowder pleaded guilty to Attempted Burglary in the second degree, he was told by the court that his plea was in exchange for a sentence of two years in prison and restitution. (A-19) He was further told f our separate times that if he were to violate any of the terms of his plea agreement, he could be given an increased sentence of up to seven years in prison. (A-19, 27-28) The transcript of the plea proceeding does not reveal any mention of a term of post release supervision. (A-17-29) However, when Mr. Crowder was sentenced in absentia, his sentence was increased to 5 years in prison with a term of 3 years postrelease supervision. (A-34) Because Mr. Crowder was not informed of a possible term of post release supervision when he made his guilty plea, and a term of postrelease supervision was imposed upon his sentenced, his plea should be vacated and his conviction reversed. "A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences." People v. Ford, 86 NY2d 397, 402-03 (1995). While there is no exact script that a court must follow during a plea colloquy, there are certain standards that must be met if the plea is to be knowing and voluntary. "The court is not required to engage in any particular litany when allocuting the defendant, but due process requires that the record must be clear that 'the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant.'" Id. at 403 (quoting North Carolina v. Alford, 400 US 25, 31 (1970)). A term of postrelease supervision is a direct consequence of a conviction of which the defendant must be made aware. "Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction." People v. Catu, 4 NY3d 242, 245 (2005). Should a trial court fail to make the defendant aware, a challenge can be made to his plea as not knowing and voluntary. This issue does not have to be preserved in order to be raised on appeal. People v. Louree, 8 NY3d 541, 545-46 (2007). A defendant cannot be expected to move to withdraw his plea when he has no knowledge of a particular component of the sentence. Id. at 546. Furthermore, when the defendant is not informed of a term of postrelease until the sentencing, it is too late to withdraw the plea. Id. Therefore, this issue can be raised despite the absence of a post allocution motion. Id. In People v. McAlpin, 17 NY3d 936, 937 (2011) the defendant pleaded guilty to Robbery in the second degree in exchange for being adjudicated as a youthful offender and receiving a term of probation if certain conditions were satisfied. McAlpin, at 937. In a factual situation analogous to the case at bar, the trial court informed the defendant during the plea proceeding that if the terms of the plea agreement were violated, he could face three and a half to fifteen years in prison, but did not mention a postrelease component. Id. The defendant subsequently violated several of the terms and was sentenced to a term of three and a half years in prison plus five years of postrelease supervision. Id. The defendant appealed on the ground that reversal was required because the court failed to reference the possibility of postrelease supervision if the terms of the agreement were violated. Id. The court held that by not referencing the possibility of postrelease supervision, the court gave the defendant an "inaccurate impression" of the court's sentencing options. Id. The court vacated the plea and reversed the conviction. Id. In Louree, supra, the defendant pleaded guilty to attempted criminal possession of a weapon in exchange for a one year prison term or two years if a prior conviction in Connecticut qualified as a predicate felony in New York. Louree, supra, at 542. The court informed the defendant that if he violated the terms of the plea agreement, the court would not be bound by the agreement and could impose a sentence of up to seven years in prison. Id. at 543. The judge did not make any reference to the possibility of a term of postrelease supervision. Id. The defendant did not fulfill any of the terms of the agreement and as a result his sentence was increased to seven years in prison plus five years postrelease supervision. Id. at 544. The court held that because the lower court did not advise the defendant of postrelease supervision during the plea allocution, the plea was not knowing, voluntary and intelligent. Id. at 545-46. The court therefore vacated the defendant's plea. Id. at 546. In 2009, in deciding People v. Rucker, this Court again reaffirmed the principle of law at stake in this case, that is, that the defendant must be aware during the plea colloquy of the terms of postrelease supervision. "County Court failed to mention postrelease supervision during the plea colloquy, it did explicitly state the terms of mandatory postrelease supervision at the time of sentencing. postrelease supervision would be a component of his sentence, the plea must be vacated." (internal citations omitted) People v. Rucker, 67 A.D.3d 1126, 1128 (2009). .. As a result of the failure to advise defendant during the allocution that Furthermore, in People v. Cornell, 16 NY3d 801 (2011) the court found that it was not clear from the record whether the defendant was aware that the promised sentence included a term of postrelease supervision. Cornell, at 801. Because of this uncertainty the court held that the plea must be vacated even in the absence of a post allocution motion. Id. Here, the court mentioned PRS during a previous hearing when advising Mr. Crowder of a possible plea agreement that he could consider. (A-7) However, as in McAlpin, Louree, and Cornell, the court did not reference a period of post release supervision during Mr. Crowder's plea allocution. (A-14-26) The judge only stated that one count of Burglary in the second degree would be reduced to one count of Attempted Burglary in the second degree, contingent upon Mr. Crowder pleading guilty, "receiving a sentence of two years with restitution, should there be any, and in the alternative $375 in fees and surcharges and for the DNA fee and waiver of right to appeal." (A-16) The district attorney agreed with this description of the plea agreement. (A-16) Mr. Crowder's understanding of the consequences of his guilty plea was based on the consequences that were clearly explained at his actual plea hearing and they did not include a term of PRS. At the very least, as in Cornell, it is unclear whether Mr. Crowder was aware of any term of PRS. Moreover, the court then later stated four separate times that if Mr. Crowder violated the terms of the agreement, the court would not be bound by the two-year agreement and could sentence him to up to seven years in prison. (A-15-16, 24-25) As in McAlpin, this gave Mr. Crowder an "inaccurate impression" of the court's sentencing options. During those four separate admonitions, the court did not once reference a term of postrelease supervision. (A-15- 16, 24-25) This repeated insistence that the consequence of a potential plea violation reinforced the defendant's impression that the only direct consequence of his plea would be prison. This is not a case about the failure to preserve the challenge to the sentence imposed. The Appellate Division, Third Department held, in People v. Crowder, 110 AD3d 1384 (2013), that the failure to object when the postrelease supervision term was first mentioned at sentencing was a failure to preserve the issue for appellate purposes. The lower court, in finding that the error was not preserved for appellate review, cites People v. Murray, 15 NY3d 725 (2010) and other cases as justification for this decision. This case, however, is factually analogous not to Murray, but instead to McAlpin. Indeed, as further discussed below, this Court has already specifically rejected the Murray framework upon which the lower court relied, and this case is an opportunity to further clarify the distinction. The issue in this case is not of preservation but instead of voluntariness. In McAlpin, this Court found that the failure to mention postrelease supervision during the plea colloquy, and only briefly to mention it during the sentencing, made the entire plea invalid. Id. The McAlpin trial court, just like the trial court in the case at bar, only mentioned postrelease supervision right before it was imposed at sentencing. In that scenario, the defendant is given an "inaccurate impression of the court's sentencing options" and thus cannot make a knowing and voluntary plea. The lower court, in citing People v. Murray, shifted the argument towards preservation and away from voluntariness. Indeed, the lower court seemingly adopts the dissent of McAlpin and creates a new standard from it. That standard would view these cases The same distinguishing characteristics this Court cited there are applicable here. "In Murray, defendant had been told at the plea proceeding that two years of postrelease supervision would be imposed but was informed at the commencement of sentencing that the court would instead impose a sentence of three years." McAlpin, 17 N.Y.3d 936, 938 (2011). Thus, the Murray court found that an increase in postrelease supervision must be preserved if it is to be appealed; however, the complete silence on the issue is a matter of voluntariness alone. Lowe courts have continued to struggle with their attempts to determine when, or if, a challenge to the voluntariness of the plea should survive. For example, the Fourth Department, in People v. Pett, the court overturned the plea of a defendant who was not properly informed of a term of postrelease supervision until just before it was imposed. People v. Pett, 77 AD3d 1281 (4' Dep't. 2010). However, just a few years later, the Fourth Department in People v. Turner, let stand a plea in which the defendant was told, just before sentence was imposed, that there would be a term of postrelease supervision. People v. Turner, 107 AD3d 1543 (4' Dep't 2013). The Second Department, in People v. Chander, has held recently that the failure of a trial court to inform a defendant of the postrelease supervision component must result in a vacatur of the plea. People v. Chander, 113 AD3d 697 (2" Dep't 2014). However, just a few months before, the Second Department upheld a the plea in People v. Bores,without much elaboration, in which a defendant was informed of the postrelease term at the outset of the sentencing hearing. People v. Bores,103 A D3d 747 (2" Dep't 2013) It is as if the lower courts, in attempting to define the exact moment when the issue morphs from voluntariness to preservation, has drawn concentric circles around the imposition of sentence and, judging from where the arrow lands, determines whether or not the plea should be vacated or not. The rule appellant proposes is simple and objective. The rule should recognize that an individual's right to understand the direct consequences of his or her plea should be clearly and unequivocally stated at the time of the plea. A court's failure to do otherwise should result in a vacating of the plea. This Catu challenge, which has been found before, survives without preservation problems upon which any number of facts can be distinguishing. To parse otherwise could lead to an untold number of factually different scenarios that render any rule ineffective. 10 There was, in place, the framework for a bright line rule that was ignored, repeatedly, by the trial court and the Appellate Court has blurred. Time and time again, this Court has held that the failure to state, in clear and unequivocal terms, the direct consequences of a plea renders the plea involuntary. In this case, while the defendant was made aware of a range of possible post- release supervision sentences days prior to the plea, there was no mention of any post-release supervision during the actual plea. If the lower court decision is allowed to stand, it could invite other attempts to move further away from what was once a central concept. In accordance with Louree, McAlpin and Cornell, because a term of postrelease supervision was not referenced during the plea colloquy and only mentioned just prior to its imposition at sentencing, Mr. Crowder's plea was not knowing, voluntary and intelligent and should thus be vacated and his conviction reversed. CONCLUSION As a result of the errors below, Appellant did not make a knowing, voluntary and intelligent guilty plea, and this Court should reverse his conviction and/or reduce the sentence. Dated: May 8, 2013. Respectfully submitted, KINDLON SHANKS & ASSOCIATES. By Lee C. Kindlon Attorneyfor Appellant Adam Crowder 74 Chapel Street Albany, New York 12207 (518) 434-1493 11