The People, Respondent,v.Daniel Boyer, Appellant.BriefN.Y.October 17, 2013To Be Argued By: Time Requested: STEVEN M. SHARP Ten (10) minutes COURT OF APPEALS STATE OF NEW YORK _______________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - DANIEL BOYER Defendant-Appellant. _______________ ________________________________________________________________________ RESPONDENT’S BRIEF ________________________________________________________________________ P. DAVID SOARES ALBANY COUNTY DISTRICT ATTORNEY ATTORNEY FOR RESPONDENT ALBANY COUNTY JUDICIAL CENTER 6 LODGE STREET ALBANY, NEW YORK 12207 TEL. (518) 487-5460 STEVEN M. SHARP DATE COMPLETED: Of Counsel MARCH 25, 2013 ___________________________________________________________________________________________ i TABLE OF CONTENTS Page TABLE OF CONTENTS ............................................................................................................. i TABLE OF AUTHORITIES ....................................................................................................... ii PRELIMINARY STATEMENT ................................................................................................. 1 STATEMENT OF FACTS .......................................................................................................... 2 ARGUMENT ............................................................................................................................... 5 I. THE SENTENCING COURT PROPERLY ADJUDICATED DEFENDANT AS A PERSISTENT VIOLENT FELONY OFFENDER ............................................... 5 A. Sparber Resentencing does not Alter the Date of Conviction for Enhanced Sentencing Purposes .................................................................................................. 5 B. Defendant’s Sparber Resentencing is a Nullity ....................................................... 10 C. Even if this Court Determines that Defendant’s 2002 Conviction Cannot be Used to Enhance his Sentence, Defendant can be Adjudicated as a Persistent Violent Felony Offender at a Resentencing Proceeding ........................................ 11 II. WHETHER A NEGOTIATED SENTENCE WOULD RUN CONSECUTIVE TO AN UNDISCHARGED SENTENCE IS A COLLATERAL CONSEQUENCE OF A PLEA ........................................................................................................................ 13 CONCLUSION ........................................................................................................................... 16 ii TABLE OF AUTHORITIES CASES Page(s) FEDERAL CASES Boyer v Miles, 2008 WL 2433534 [NDNY 2008] ......................................................................................4 North Carolina v Alford, 400 US 25 [1970] ..............................................................................................................13 NEW YORK CASES People v Acevedo, 17 NY3d 297 [2011] ................................................................................................. passim People v Belliard, 2013 WL 499504 [2013] ...................................................................................................15 People v Boyer, 19 AD3d 804 [3d Dept 2005] .............................................................................................2 People v Boyer, 36 AD3d 1084 [3d Dept 2007] ...........................................................................................4 People v Ford, 86 NY2d 397 [1995] ...................................................................................................13, 14 People v Francis, 38 NY2d 150 [1975] .........................................................................................................14 People v Harris, 61 NY2d 9 [1983] .............................................................................................................13 People v Hill, 9 NY3d 189 [2009] .....................................................................................................13, 14 People v Latham, 90 NY2d 795 [1997] .........................................................................................................14 People v Lingle, 16 NY3d 621 [2011] ...........................................................................................................8 iii TABLE OF AUTHORITIES (Cont.) CASES Page(s) People v Morse, 62 NY2d 205 [1984] ...........................................................................................................6 People v Sparber, 10 NY3d 457 [2008] ................................................................................................. passim People v Williams, 14 NY3d 198 [2010] .....................................................................................................9, 10 1 PRELIMINARY STATEMENT By permission of the Honorable Judge Susan Phillips Read, Associate Judge of the New York Court of Appeals, granted September 12, 2012, Daniel Boyer appeals from an order of the Appellate Division, Third Department, entered January 26, 2012, as amended March 29, 2012, which affirmed a judgment of the County Court of the State of New York, Albany County (Breslin, J.), rendered February 18, 2009, convicting him of Attempted Burglary in the Second Degree (Penal Law § 110/140.25[2]), upon a plea of guilty, and sentencing him to a determinate prison term of thirteen and a half years (131/2). Defendant is currently incarcerated pursuant to this judgment of conviction. 2 STATEMENT OF FACTS In June of 2008, an Albany County Grand Jury handed up a two-count indictment charging defendant, Daniel Boyer, with one count of Burglary in the Second Degree, in violation of Section 140.25[2] of the Penal Law of the State of New York, a Class C Felony and one count of Grand Larceny in the Fourth Degree, in violation of Section 155.30[1] of the Penal Law of the State of New York, a Class E Felony. This charge stems from an incident wherein defendant entered a dwelling with the intent to commit a crime and stole various items. Defendant’s Prior Convictions In 1984, defendant was convicted of a class E nonviolent felony and in 1989, defendant was convicted of a class D violent felony (see People v Boyer, 19 AD3d 804, 805 [3d Dept 2005]. In 1994, defendant pleaded guilty to burglary in the second degree, in exchange for an agreed upon sentence, and was sentenced, illegally, as a second felony offender (see Boyer, 19 AD3d at 805). Thereafter, defendant sought to vacate the sentence imposed on the ground that it was illegal (see Boyer, 19 AD3d at 805-06). Defendant’s motion was granted and he was resentenced, in 2004, as a second violent felony offender, to the agreed upon sentence (see Boyer, 19 AD3d at 806). The Predicate Crime and Sentence In 2002, defendant pleaded guilty to attempted burglary in the second degree (Penal Law § 110/140.20[2]), a Class D violent felony offense (Penal Law § 70.02[1][c]), in full satisfaction of the indictment. Defendant was sentenced, as a persistent violent felony offender to 12 years to life; the persistent status was subsequently vacated (see Boyer, 19 AD3d at 806). 1 On remittal, on November 30, 2005, defendant was resentenced, as a second felony offender, to a determinate 1 The persistent status was vacated because defendant was illegally sentenced in 1994 and that sentence was not corrected until after the crimes were committed in Albany County (see Boyer, 19 AD3d at 806). 3 term of 7 years (A 13). The sentencing court did not pronounce a term of post-release supervision (A 13). At that time, post-release supervision applied automatically, whether or not the court orally pronounced it, and as a result of the predicate conviction, there was no discretion in the amount of post-release supervision to be imposed (see Penal Law § 70.45[2]). Thus, defendant’s conviction mandated a five-year term of post-release supervision, which applied automatically (see Penal Law § 70.45[2]). Defendant was released from prison on the attempted burglary conviction on or about May 16, 2008. The Instant Crime and Sentence Three days after his release, defendant was arrested for, among other crimes, burglary in the second degree, stemming from an incident that occurred on May 18, 2008. On December 24, 2008, defendant pleaded guilty to a reduced count of attempted burglary in the second degree in exchange for a sentence of not more than 14 years to life (A 26). At sentencing, defendant did not controvert the People’s statement that he previously had been convicted of a violent felony offense nor did defendant controvert the special information, charging him as a persistent violent felony offender (A 38-39). On that basis, the sentencing court adjudicated defendant as a persistent violent felony offender based on the 2002 conviction of attempted burglary in the second degree (resentenced in 2005) and the 1994 conviction of burglary in the second degree (resentenced in 2004) (A 39; see Penal Law §§ 70.04[1][b]; 70.02[1]). Defendant was sentenced to 131/2 years to life (A 40). Resentencing on the Predicate Conviction In 2007, defendant appealed from his resentencing following remittal, arguing that he needed to be resentenced again, because his commitment form reflected a five year period of post-release supervision, but County Court did not orally pronounce that portion of his sentence 4 (see People v Boyer, 36 AD3d 1084, 1085 [3d Dept 2007]). Though the People conceded that remittal for resentencing was appropriate under the circumstances, the Appellate Division found no need for remittal, citing that the term of post-release supervision was mandatory (see Boyer, 36 AD3d at 1085). However, defendant successfully sought a writ of habeas corpus, which excised the term of post-release supervision from his judgment of conviction (see Boyer v Miles, 2008 WL 2433534 [NDNY 2008]). In 2009, the Department of Correctional and Community Services (hereinafter “DOCCS”) notified Judge Breslin, pursuant to Correction Law § 601-d, that defendant’s post- release supervision terms had not been pronounced at the original sentencing proceedings on his 2002/2005 conviction. Defendant was resentenced on the attempted burglary conviction in November of 2009; the 7 year determinate sentence was reimposed and, pursuant to Penal Law § 70.85, no period of post-release supervision was imposed (A 16). The Appellate Division’s Decision The Appellate Division, Third Department, affirmed the sentencing court’s refusal to alter defendant’s predicate violent felony offender status in this case (A 4). The Appellate Division, persuaded by the concurrence in Acevedo, determined that “the original sentencing date on the prior conviction – as opposed to the resentencing date – controls in determining whether the prior conviction may be considered as a predicate in sentencing for subsequent crimes” (A 4). Thereafter, a Judge of this Court granted defendant leave to appeal (A 1). 5 POINT I THE SENTENCING COURT PROPERLY ADJUDICATED DEFENDANT AS A PERSISTENT VIOLENT FELONY OFFENDER Defendant argues that his 2002 conviction for attempted burglary in the second degree cannot operate as a predicate for enhanced sentencing because he was resentenced, in a resentencing proceeding sought by DOCCS, after the date of commission for the instant offense (Defendant’s Brief at 8). The Third Department rejected this contention, holding that the original sentencing date on the prior conviction, not the resentencing date, controls in determining whether the prior conviction may be considered as a predicate to enhance sentencing for subsequent crimes (A 4). This Court should affirm the Third Department’s holding since the purpose of Sparber resentencing is to correct procedural errors, not to vacate a sentence and since defendant’s Sparber resentence was a nullity. A. Sparber Resentencing does not Alter the Date of Conviction for Enhanced Sentencing Purposes Defendant’s persistent violent status should not be lessened simply because a Sparber resentencing was conducted in one of his predicate cases. At the Sparber resentencing, the court merely reimposed the legal, 7 year prison term, that defendant had already served, and pronounced that defendant would not be subject to any term of post-release supervision. The purpose of the resentencing here, was to correct a “procedural error,” “akin to a misstatement or clerical error” (see People v Sparber, 10 NY3d 457, 472 [2008]). For that reason, in determining whether a prior conviction meets the sequentiality requirements to qualify as a predicate offense, courts must use the original sentencing date, not the Sparber resentencing date. A defendant may be sentenced as a “persistent violent felony offender” when he “stands convicted of a violent felony offense . . . after having previously been subjected to two or more 6 predicate violent felony convictions” (see Penal Law § 70.08[1][a]). The sentences for the prior violent felony offenses must have been imposed “before commission of the present felony” (see Penal Law § 70.08[1][b]). This requirement ensures “that enhanced punishment not be imposed merely for repeated criminality, but only for refusal to reform after sentence on a prior crime had been imposed” (see People v Morse, 62 NY2d 205, 221-22 [1984]). Indeed, “enhanced punishment” should not be imposed “unless the chastening effect of sentence on the prior conviction have preceded commission of the latest crime” (see Morse, 62 NY2d at 219). Ignoring the Sparber resentencing, defendant qualified as a persistent violent felony offender. Defendant’s sentence on his conviction for attempted burglary, a violent felony, was imposed in 2002 and reimposed in 2005, well before he committed the instant burglary in 2008. In addition, defendant’s actions epitomize the type of conduct that the Legislature intended to penalize with enhanced sentences. Not only had defendant been sentenced on the attempted burglary offense prior to committing the present offense, but he had served the entirety of that sentence and he had been released from prison. A mere two days passed, from the time he was released from prison to the time he committed the instant offense. Without question, defendant’s prior sentence had had no rehabilitative or deterrent impact on him and thus, defendant falls squarely within the class of criminals for whom the enhanced sentencing provisions for persistent violent felony offenders had been enacted. But because the court conducted a Sparber proceeding in November of 2009 to correct the sentencing court’s failure to pronounce a term of post-release supervision at defendant’s original resentencing hearing on the 2002, attempted burglary conviction, defendant contends that he falls short of the persistent violent felony offender requirements (Defendant’s Brief at 8). Sparber resentencing, however, does not change defendant’s status as a persistent violent felony 7 offender. This Court, in Sparber, considered “whether defendants are entitled to be relieved of their statutory obligation to serve a term of postrelease supervision (PRS) because sentencing courts failed to pronounce their PRS terms in accordance with Criminal Procedure Law §§ 380.20 and 380.40” (see Sparber, 10 NY3d at 464-65). There, this Court found that the “procedure through which PRS was imposed . . . was flawed as it did not comply with the statutory mandate” (see Sparber, 10 NY3d at 465 [emphasis added]). The procedural nature of the error at issue in Sparber was made clear when this Court held that the defect in the pronouncement of sentence was “akin to a misstatement or clerical error” and could be “easily remed[ied]” by holding “a resentencing hearing so that the trial judge can make the required pronouncement” (see Sparber, 10 NY3d at 471-72). Indeed, this Court rejected the argument that the appropriate remedy was to strike the terms of post-release supervision from their sentences, agreeing with the People that such a remedy “would leave defendants with a windfall that [would] greatly exceed any harm that they ha[d] purportedly suffered” (see Sparber, 10 NY3d at 465-66). In Acevedo, this Court addressed whether Sparber resentencing would result in a windfall to multiple offenders (see People v Acevedo, 17 NY3d 297, 299 [2011]). The question there was “whether a resentencing sought by a defendant to correct an illegally lenient sentence is effective to temporally resituate the sentence and thus alter the underlying conviction’s utility as a predicate for enhanced sentencing” (see Acevedo, 17 NY3d at 299). This Court rejected the notion that a defendant could eliminate his prior crime as a predicate in a later case by seeking to correct a sentencing error where post-release supervision was not pronounced properly because the only errors to correct “were errors in their favor” (see Acevedo, 17 NY3d at 302). But this Court left open the question of “what effect a bona fide Sparber resentence . . . should have for 8 predicate felony purposes” or, in other words, what effect a Sparber resentencing sought by DOCCS would have for predicate felony purposes (see Acevedo, 17 NY3d at 303). Here, defendant’s Sparber resentence should have no effect for predicate felony purposes. Sparber resentencing hearings simply correct a procedural flaw in the original sentence proceeding; they do nothing more than to make the required post-release supervision pronouncement (see People v Lingle, 16 NY3d 621, 635 [2011]). The holding in Sparber does not “direct or empower judges to revisit the propriety of a defendant’s sentence as a whole” (see Lingle, 16 NY3d at 634) nor does a resentencing court have “the power to reconsider either the conviction or the incarceration component of the original sentence” (see People v Acevedo, 17 NY3d 297, 305 [2011] [Pigott, J., concurring]; Lingle, 16 NY3d at 634-35). Instead, Sparber resentencing is limited to “making the required pronouncement” and is not a “plenary proceeding” (see Lingle, 16 NY3d at 635 [citations and quotations omitted]). In this case, the Sparber resentencing did not correct an illegal sentence or result in a new judgment of conviction. Rather, the resentencing merely corrected a procedural defect in the pronouncement of defendant’s substantively legal sentence by pronouncing that defendant would not be subjected to a term of post-release supervision. This is where defendant’s argument truly misses the mark. Defendant claims that the “government chose to receive the benefits of resentencing” by extending “the time that [defendant] could be re-confined beyond the time that he could otherwise have been released for good behavior” (Defendant’s Brief at 11). On the contrary, the government received no benefit. At his Sparber resentencing, no period of post-release supervision was imposed pursuant to Penal Law § 70.85 (A 16). Indeed, since defendant had been released from prison and his time to appeal had been finally determined, the resentencing 9 court had no jurisdiction to modify the original judgment and the imposition of a period of post- release supervision would have violated the Double Jeopardy Clause of the Constitution (see People v Williams, 14 NY3d 198, 217, 219 [2010]; see also Point I, B, supra). Finally, should this Court hold that Sparber resentencings reset the sentencing dates, which reset the clock for sequentiality purposes, an unintended consequence would result. Such a holding will extend the eligibility for sentencing as a predicate felon on any subsequent conviction of any defendant who legitimately sought to clarify their post-release supervision terms or of any defendant who was resentenced at the behest of DOCCS. This consequence clearly undermines the Legislature’s intent in devising the tolling provisions and time limitation by subjecting a defendant to enhanced sentencing beyond the 10 year limitation simply because a Sparber resentencing shifted the date of his sentence. In short, a Sparber resentence – whether initiated by a defendant or by DOCCS – should have no effect for predicate felony purposes. If this Court determines that a Sparber resentencing re-sets the date upon which a defendant’s sentence is considered to be imposed, the result would frustrate the Legislature’s plain intent in creating the enhanced sentencing provisions for predicate offenders and allow a defendant to avoid the penal consequences of reoffending because of a procedural irregularity. Given the procedural nature of the error at issue, this Court should hold, as the concurring opinion in Acevedo urged, “when determining whether a defendant is a prior felony offender for purposes of sentencing under the Penal Law, the original sentence date on the prior conviction, and not the Sparber resentencing date, controls” (see Acevedo, 17 NY3d at 305 [Pigott, J., concurring]). For that reason, defendant’s 2002 attempted burglary conviction properly serves as a predicate offense for sentencing enhancement on the present case. 10 B. Defendant’s Sparber Resentencing is a Nullity By the time DOCCS sought to resentence defendant pursuant to Correction Law § 601-d to assure that defendant’s sentence would impose the required term of post-release supervision, defendant had fully served the sentence originally imposed upon his 2002 conviction, which was used as a predicate for sentence enhancement. Defendant’s Sparber resentencing, imposed in 2009, was rendered a nullity in this Court’s subsequent decision in People v Williams. Since defendant’s resentence was a nullity, it does not alter the relevant sentencing sequences and the use of his 2002 conviction to adjudicate defendant as a persistent violent felony offender was proper. Even if a Sparber resentencing could move a “sentence forward so as to vitiate its utility as a sentencing predicate” (see Acevedo, 17 NY3d at 302), defendant still could not rely on the Sparber resentencing to alter his status as a persistent violent felon. After the Sparber resentencing in this case, this Court held that where a defendant has already served his prison term and exhausted his direct appeal, constitutional Double Jeopardy considerations prevent “any subsequent upward modifications” to his original sentence, including the pronouncement of a term of post-release supervision not stated at the defendant’s original sentencing proceeding (see Williams, 14 NY3d at 219-220). In fact, under those circumstances, a resentencing court does “not retain jurisdiction to modify the original judgment[],” and the defendant’s sentence – without a term of post-release supervision – becomes “final” (see Williams, 14 NY3d at 219, 221). Here, since defendant had served his prison sentence and since defendant’s appeal had been finally determined, defendant’s sentence, without a term of post-release supervision, became “final” upon his release from prison in 2008. While no period of post-release 11 supervision was imposed at defendant’s resentencing, such a pronouncement did not require a Sparber proceeding because, under Williams, defendant’s sentence, without post-release supervision, was already final upon his release from prison. Thus, defendant’s resentencing proceeding was a nullity. To be sure, defendant was granted a Sparber resentencing prior to this Court’s decision in Williams. Nonetheless, the result of defendant’s resentencing was the same as it would have been under Williams: his sentence consisted only of the prison term originally imposed and already served, with no additional term of post-release supervision. The only difference in defendant’s sentence having been pronounced at his Sparber resentencing rather than determined legally “final” under Williams is that, under Williams, defendant was not entitled to have his sentence re-pronounced and, thus, defendant would have no grounds for arguing that the sentence date had been changed. Therefore, defendant’s position, that his sentence date shifted four years forward and altered his status as a persistent violent felon, simply because he was granted a Sparber resentencing where nothing was substantively altered in his sentence – a result required under Williams without any proceeding – strains credulity. As defendant’s Sparber resentencing was a nullity, defendant’s 2002 attempted burglary conviction properly serves as a predicate offense for sentencing enhancement on the present case. C. Even if this Court Determines that Defendant’s 2002 Conviction Cannot be Used to Enhance his Sentence, Defendant can be Adjudicated as a Persistent Violent Felony Offender at a Resentencing Proceeding As previously mentioned, a defendant is subject to enhanced sentencing when he is convicted of a qualifying violent felony offense and has previously been convicted of two such prior offenses (see Penal Law § 70.08[1][a]). In addition, the sentences upon the prior 12 convictions must have been “imposed not more than [10] years before commission of the felony of which the defendant presently stands convicted” (see Penal Law § 70.04[1][b][iv]). The 10 year period does not include any periods of incarceration “for any reason between the time of commission of the previous felon[ies] and the time of commission of the present felony” (see Penal Law § 70.04[1][b][v]). In this case, the special information charging defendant as a persistent violent felony offender, provided to the sentencing court and defendant, alleged that defendant was convicted of two prior violent felony offenses: burglary in the second degree (1994) and attempted burglary in the second degree (2002). If this Court were to determine that defendant’s 2002 conviction cannot be used as a predicate offense because of his 2009 Sparber resentencing, the People, upon remittal to County Court for resentencing, would simply file an amended special information charging defendant as a persistent violent felony offender based on his attempted burglary in the second degree (1989) and his burglary in the second degree (1994) convictions. Based on defendant’s history of incarceration, the People calculate that his 1989 conviction, excluding periods of incarceration, falls well within the 10 year period. Accordingly, if this Court determines that defendant’s 2002 conviction cannot be used as a sentencing predicate, upon remittal to County Court for resentencing, the People seek leave to file an amended special information. 13 POINT II WHETHER A NEGOTIATED SENTENCE WOULD RUN CONSECUTIVE TO AN UNDISCHARGED SENTENCE IS A COLLATERAL CONSEQUENCE OF A PLEA Defendant contends that his guilty plea is invalid because the court did not inform him that the negotiated sentence would run consecutive to his undischarged sentence (Defendant’s Brief at 12). He argues that the fact that his negotiated sentence would run consecutively to his undischarged sentence is a “direct” consequence of a guilty plea, and since the court did not inform him about that aspect of his sentence, his plea was not knowing and voluntary (Defendant’s Brief at 12). Since a negotiated sentence runs consecutive to an undischarged sentence by operation of law, it is a collateral consequence of a guilty plea. It has been well established that “when a criminal defendant waives the fundamental right to trial by jury and pleads guilty, due process requires that the waiver be knowing, voluntary and intelligent” (see People v Hill, 9 NY3d 189, 191 [2009]; NY Const art I, § 6; People v Ford, 86 NY2d 397, 403 [1995]). As such, the plea court must ensure that a defendant “has a full understanding of what the plea connotes and its consequences” (see Ford, 86 NY2d at 402-03). So long as “the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant” (see North Carolina v Alford, 400 US 25, 31 [1970], the court is “not required to engage in any particular litany when allocating the defendant” (see Ford, 86 NY2d at 403). When a court fails to advise the defendant of what the plea connotes and its consequences, “the plea cannot be deemed knowing, voluntary and intelligent, and defendant may withdraw the plea and be returned to his or her uncertain status before the negotiated bargain” (see Hill, 9 NY3d at 191; People v Harris, 61 NY2d 9, 17 [1983]). But “there is no requirement that the [court] conduct a pro forma inquisition in each case on the off- chance that a defendant who is adequately represented by counsel . . . may nevertheless not know 14 what he is doing” (see People v Francis, 38 NY2d 150, 154 [1975]). In 1978, the Legislature enacted Penal Law § 70.25[2-a] to divest sentencing courts of authority to direct the sentences of repeat felony offenders to run concurrently with previously imposed undischarged sentences. Penal Law § 70.25[2-a] mandates that a prison term imposed upon a second felony offender must run consecutively to a previously imposed undischarged sentence. In this case, defendant was sentenced as a persistent violent felony offender, based on his admission of his prior violent felony convictions. As a repeat offender, Penal Law § 70.25[2- a] is clearly applicable to this case and mandates that the bargained-for sentence run consecutively with defendant’s undischarged sentence by operation of law. With the understanding that a court “is in no position to advise on all the ramifications of a guilty plea personal to a defendant[,] . . . 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’” (see Ford, 86 NY2d at 403; People v Latham, 90 NY2d 795, 798 [1997]). A direct consequence of a guilty plea is one “which has a definite, immediate and largely automatic effect on defendant’s punishment” (see Ford, 86 NY2d at 403; Latham, 90 NY2d at 798). Conversely, a collateral consequence of a guilty plea is one which is “peculiar to the individual’s personal circumstances and one not within the control of the court system” (see Ford, 86 NY2d at 403; Latham, 90 NY2d at 798). When a court fails to advise a defendant of the direct consequences of the plea, the defendant must be given the opportunity to withdraw the plea (see Hill, 9 NY3d at 191). On the other hand, when a court fails to advise a defendant of the collateral consequences of the plea, however, that failure does not “warrant vacating a plea because they are peculiar to the individual and generally result from the actions taken by agencies the court does not control” 15 (see Ford, 86 NY2d at 403). Recently, this Court rejected defendant’s contention that consecutive sentencing is a direct consequence of a plea (see People v Belliard, --- NY3d ---- [2013]). In distinguishing the imposition of post-release supervision from the consecutive sentence imposed pursuant to Penal Law § 70.25[2-a], this Court noted that “the consecutive nature of a prison term . . . is not a component of the sentence itself” (see Belliard). Moreover, this Court emphasized that a sentencing court does not need to pronounce a term of imprisonment as “consecutive,” “particularly since the judge may not even be aware that a defendant has time remaining on a previously-imposed sentence” (see Belliard). For those reasons, this Court held that “the consecutive nature of defendant’s sentence pursuant to Penal Law § 70.25[2-a] is a collateral consequences of his conviction” and the failure of a plea court “to address the impact of Penal Law § 70.25[2-a] during the plea colloquy does not require vacatur of the plea” (see Belliard). Thus, since the consecutive nature of defendant’s sentence is a collateral consequence of his conviction, even though the plea court did not inform defendant that his negotiated sentence would run consecutive to his undischarged sentence, vacatur of the plea is not warranted and the order of the Appellate Division should be affirmed. 16 CONCLUSION THE JUDGMENT OF CONVICTION SHOULD, IN ALL RESPECTS, BE AFFIRMED. RESPECTFULLY SUBMITTED, P. DAVID SOARES ALBANY COUNTY DISTRICT ATTORNEY ATTORNEY FOR RESPONDENT ALBANY COUNTY JUDICIAL CENTER 6 LODGE STREET ALBANY, NEW YORK12207 TEL. (518) 487-5460 Dated: March 25, 2013 By:_______________________ STEVEN M. SHARP Of Counsel