The People, Respondent,v.Daniel Boyer, Appellant.

Brief

N.Y.October 17, 2013

TO BE ARGUED BY MARK C. DAVISON, ESQ. TIME REQUESTED: 30 MINUTES Appellate Division Nos. 102509, 103138 Albany County Indictment No. 13-2071 ================================================================================= STATE OF NEW YORK COURT OF APPEALS _____________________________________________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- DANIEL BOYER, Defendant-Appellant. _____________________________________________________________________________________ BRIEF FOR APPELLANT ________________________________________________________________ BY: MARK C. DAVISON, ESQ DAVISON LAW OFFICE, PLLC P.O. Box 652 Canandaigua, New York 14424 Tel: (585) 394-5222 Fax: (585) 394-5226 Date: February 4, 2013 Table of Contents Table of Authorities…………………………………………………………1 Questions Presented…………………………………………………………3 Jurisdictional Statement……………………………………………………..4 Statement of Facts…………………………………………………………...6 ARGUMENT POINT ONE: MR. BOYER SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER BECAUSE RESENTENCING OF A PREDICATE CONVICTION HAD BEEN SOUGHT BY DOCCS AFTER THE COMMISSION OF THE OFFENSE FOR WHICH HE WAS SENTENCED……………………………………8 POINT TWO: BECAUSE THE TRIAL COURT FAILED TO ADVISE MR. BOYER THAT A DIRECT CONSEQUENCE OF HIS PLEA WOULD BE THAT HIS SENTENCE WOULD BE CONSECUTIVE TO AN UNDISCHARGED SENTENCE ON A PRIOR CONVICTION, MR. BOYER’S PLEA CANNOT BE DEEMED KNOWING, VOLUNTARY AND INTELLIGENT, AND MR. BOYER MUST BE GIVEN THE OPPORTUNITY TO WITHDRAW THE PLEA………………………….12 CONCLUSION……………………………………………………………17 i 1 TABLE OF AUTHORITIES FEDERAL CASES Boykin v Alabama, 395 US 238 [1969]………………………………………..12,15 McCarthy v United States, 394 US 459 [1969]……………………………...........15 North Carolina v Alford, 400 US 25 [1970]………………………………………12 NEW YORK STATE CASES People v Acevedo, 17 NY3d 297 [2011]……………………………………..7, 9-10 People v Acevedo, 75 AD3d 255 [1st Dept 2010], rev’d 17 NY3d 297 [2011]…...11 People v Azor, 2011 NY Misc Lexis 6552, 2011 NY Slip Op 33585U [S Ct Kings County 2011]……………………………………………………………………...14 People v Bell, 73 NY2d 153 [1989]………………………………………………10 People v Bobo, 41 AD3d 129 [1st Dept 2007], lv denied 9 NY3d 873 [2007]……13 People v Boyer, 19 AD3d 804 [3d Dept 2005], lv denied 5 NY3d 804 [2005]….4, 7 People v Boyer, 36 AD3d 1084 [3d Dept 2007], lv denied 8 NY3d 944, 9 NY3d 863 [2007]………………………………………………………………………..6-7 People v Boyer, 91 AD3d 1194 [3d Dept 2012], lv granted 19 NY3d 1024 [2012]…………………………………………………………………………….4, 7 People v Bryant, 180 AD2d 874 [3d Dept 1992]…………………………………12 People v Butler, 88 AD3d 470 [2011], lv denied 18 NY3d 992 [2012]………..9, 10 People v Catu, 4 NY3d 242 [2005]……………………………………………….15 People v Cornell, 16 NY3d 801 [2011]…………………………………………….5 People v Ford, 86 NY2d 397 [1995]………………………………………12-13, 16 People v Ford, 143 AD2d 522 [4th Dept 1988]…………………………………...13 People v Fuller, 28 Misc 3d 1144 [S Ct NY County 2010]………………………14 People v George, 59 AD3d 858 [3d Dept 2009]………………………………….13 People ex rel. Gill v Greene, 12 NY3d 1 [2009], cert denied sub nom. Gill v Rock ___ US ___, 130 S Ct 86 [2009]..…………………………………………..7, 13-14 People v Gravino, 14 NY3d 546 [2010]…………………………………………..12 People v Griffin, 99 AD3d 720 [2d Dept 2012]…………………………………..10 People v Harnett, 16 NY3d 200 [2011]…………………………………...13, 15-16 People v Harris, 61 NY2d 9 [1983]………………………………………………12 People v Hill, 9 NY3d 189 [2007], cert denied 553 US 1048 [2008]…………….12 2 People v Ingoglia, 305 AD2d 1002 [4th Dept 2003], lv denied 100 NY2d 583 [2003]……………………………………………………………………………...13 People v Lagas, 76 AD3d 384 [2010], lv denied 16 NY3d 744, 860 [2011], cert denied ___ US ___, 132 S Ct 156 [2011]…………………………………………14 People v Louree, 8 NY3d 541 [2007]………………………………………………5 People v McAlpin, 17 NY2d 936 [2011]………………………………………….15 People v Meckwood, 20 NY3d 69 [2012]…………………………………………..8 People v Morbillo, 56 AD3d 694 [2d Dept 2008], lv denied 12 NY3d 786 [2009]……………………………………………………………………………...13 People v Morse, 62 NY2d 205 [1984], appeal dismissed sub nom. Vega v New York, 469 US 1186 [1985]……………………………………………………...8, 10 People v Mox, ___ NY3d ___, 2012 NY Lexis 3598, 2012 NY Slip Op 8441 [Dec. 11, 2012]…………………………………………………………………………..15 People v Naughton, 93 AD3d 809 [2d Dept2012], lv denied 19 NY3d 865 [2012]……………………………………………………………………………...10 People v Newbould, 83 AD3d 1570 [4th Dept 2011], lv denied 17 NY3d 904 [2011]……………………………………………………………………………...13 People v Nixon, 21 NY2d 338 [1967]…………………………………………….12 People v Quinones, 12 NY3d 116 [2009], cert denied 558 US ___, 130 S Ct 104 [2009]……………………………………………………………………………….8 People v Samms, 95 NY2d 52 [2000]……………………………………………..11 People v Sanders, 99 AD3d 575 [1st Dept2012], lv granted ___ AD3d ___ [Dec. 27, 2012] [Sweeny, J.]……………………………………………………………...9 People v Snipes, ___ AD3d ___, 955 NYS2d 50 [1st Dept Dec. 11, 2012]………..9 People v Sparber, 10 NY3d 457 [2008]……………………………………………9 People v Walker, 81 NY2d 661 [1993]…………………………………………….8 People v Watts, 78 AD3d 1593 [4th Dept 2010], lv denied 16 NY3d 838 [2011]...14 People v Williams, 19 NY3d 100 [2012]………………………………………….11 People v Wilson, 299 AD2d 222 [1st Dept 2002], lv denied 99 NY2d 566 [2002]……………………………………………………………………………...13 NEW YORK STATUTES Correction Law § 601-d…………………………………………………………….9 Criminal Procedure Law 220.50 [5]………………………………………………15 Criminal Procedure Law 440.10……………………………………………………5 Criminal Procedure Law 440.20………………………………………………4, 6-7 Criminal Procedure Law 450.90 (1)………………………………………………..4 3 Criminal Procedure Law 470.35 (1)………………………………………………..4 Penal Law § 70.08………………………………………………………………….8 Penal Law § 70.25 (2-a)…………………………………………………6, 7, 14, 16 Penal Law § 70.85………………………………………………………………….9 QUESTIONS PRESENTED 1. Can a defendant be sentenced as a persistent violent felony offender when resentencing of a prior conviction has been sought by the Department of Corrections and Community Supervision [DOCCS] after the commission of the offense for which he is being sentenced? The Courts Below: Yes. 2. When a court fails to advise a defendant that, as a direct consequence of his plea, his sentence will be consecutive to an undischarged sentence on a prior conviction, can the plea be deemed knowing, voluntary and intelligent? The Courts Below: Yes. 4 JURISDICTIONAL STATEMENT This appeal is from a final Memorandum and Order of the Appellate Division, Third Department, that (1) affirmed a judgment of conviction of Albany County Court (Breslin, J.) rendered February 18, 2009 convicting defendant Daniel Boyer upon his plea of guilty of attempted burglary in the second degree and sentencing him as a persistent violent felony offender to a term of incarceration of 13½ years to life; and (2) affirmed an order of the same court entered January 22, 2010 that denied Mr. Boyer’s motion pursuant to Criminal Procedure Law (CPL) 440.20 to set aside that sentence, without a hearing (Appendix [hereafter A.] 2). This Court (Read, J.) granted Mr. Boyer’s application for leave to appeal on September 12, 2012 (A. 1) (19 NY3d 1024). This Court has jurisdiction to review the two issues raised on this appeal pursuant to CPL 450.90 (1) inasmuch as the Memorandum and Order of the Appellate Division was adverse to Mr. Boyer, and the issues are reviewable because they are questions of law that were raised at the Appellate Division pursuant to CPL 470.35 (1). The first question raised on this appeal (whether Mr. Boyer was properly sentenced as a persistent violent felony offender) was preserved for review at the trial court by the pro se motion of Mr. Boyer pursuant to CPL 440.20 to set aside the sentence. The Appellate Division granted 5 permission for Mr. Boyer to appeal (A. 9) from the order denying that motion (A. 11), and affirmed the order. The second question (whether Mr. Boyer should have been given the opportunity to withdraw his guilty plea) was preserved for review at the trial court by a separate pro se motion of Mr. Boyer pursuant to CPL 440.10 to vacate his conviction on that ground (the motion was denied, and the Appellate Division denied permission for Mr. Boyer to appeal from that order). Although the Appellate Division initially held on Mr. Boyer’s direct appeal that the issue had not been preserved, it granted the pro se motion of Mr. Boyer for reargument (in which he pointed out that he had brought the CPL 440.10 motion) and deleted the sentence from its Memorandum and Order stating that the issue was unpreserved (A. 6). Moreover, as this Court held in People v Cornell (16 NY3d 801, 802 [2011]) and People v Louree (8 NY3d 541, 545-546 [2007]), where a trial judge does not fulfill the obligation to advise a defendant of a direct consequence of his plea during the plea allocution, “the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion.” 6 STATEMENT OF FACTS On June 11, 2008, Daniel Boyer was indicted by the Grand Jury of Albany County on charges of burglary in the second degree and grand larceny in the fourth degree. As is apparent from a December 23, 2008 bench decision denying Mr. Boyer’s suppression motion (A. 42), County Court was aware that Mr. Boyer was on parole for prior offenses at the time of his arrest. Nevertheless, during a plea colloquy the next day, when Mr. Boyer offered to plead guilty to a lesser included offense in return for a sentence (as a persistent violent felony offender) no greater than 13 ½ years to life imprisonment, County Court made no mention of the fact that, under Penal Law § 70.25 (2-a), such a sentence was required to run consecutively to Mr. Boyer’s prior undischarged sentence (A. 18). Mr. Boyer was sentenced on February 18, 2009 (A. 37), and he filed a timely notice of appeal. Thereafter, by notice of motion dated November 24, 2009, Mr. Boyer moved pursuant to CPL 440.20 to vacate his sentence and adjudication as a persistent violent felony offender, arguing that he had been illegally resentenced in 2005 based on a 2002 conviction (see People v Boyer, 19 AD3d 804 [3d Dept 2005], lv denied 5 NY3d 804 [2005]) because the resentencing court neglected to impose a period of postrelease supervision. That illegal resentence had not been corrected when Mr. Boyer himself challenged it before the instant crime was committed in 2008 (see People v Boyer, 36 AD3d 1084 [3d Dept 2007], lv denied 8 NY3d 944, 9 7 NY3d 863 [2007]). It was not corrected until the Department of Corrections and Community Supervision (DOCCS) successfully moved to correct it, after the commission of the crime in the present case. County Court denied Mr. Boyer’s CPL 440.20 motion on January 22, 2010 (A. 11). The Appellate Division granted permission for Mr. Boyer to appeal from the order of County Court (A. 9). In a single Memorandum and Order entered January 26, 2012 (reported at 91 AD3d 1194), the Appellate Division, Third Department addressed both the direct appeal and the CPL 440.20 motion (A. 2). On the direct appeal, that court affirmed the judgment of conviction, holding that the guilty plea was knowing and voluntary because Penal Law § 70.25 (2-a) requires that Mr. Boyer’s sentence on the instant conviction run consecutively to his undischarged term and Mr. Boyer was given no reason to believe otherwise, citing People ex rel. Gill v Greene (12 NY3d 1, 6 [2009], cert denied sub nom. Gill v Rock, ___ US ___, 130 S Ct 86 [2009]). The court also affirmed the order denying the CPL 440.20 motion, holding that, as in People v Acevedo (17 NY3d 297 [2011]), 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, even though DOCCS had sought the resentencing. By order entered September 12, 2012, this Court granted leave to appeal (A. 1). 8 ARGUMENT POINT ONE: MR. BOYER SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER BECAUSE RESENTENCING OF A PREDICATE CONVICTION HAD BEEN SOUGHT BY DOCCS AFTER THE COMMISSION OF THE OFFENSE FOR WHICH HE WAS SENTENCED. Under New York’s persistent felony sentencing statutes, “a defendant is subject to an enhanced sentence based solely on the existence of two prior felony convictions” (People v Quinones, 12 NY3d 116, 128 [2009], cert denied 558 US ___, 130 S Ct 104 [2009]). The goal of such sentencing statutes “is to deter recidivism by enhancing the punishments of those who, having been convicted of felonies, violate the norms of civil society and commit felonies again” (People v Walker, 81 NY2d 661, 665 [1993]; see also People v Meckwood, 20 NY3d 69, 73- 74 [2012]). The persistent violent felony offender statute (Penal Law § 70.08) requires that the sentences on the prior convictions have been imposed before commission of the present felony (People v Morse, 62 NY2d 205, 218, 223 [1984], appeal dismissed sub nom. Vega v New York, 469 US 1186 [1985]). The question presented on this appeal is whether a 2002 burglary conviction¸ on which Mr. Boyer was illegally resentenced in 2005, can qualify as a predicate conviction for the instant offense (which occurred in 2008), when the illegal resentence was not corrected by a further resentence until after the instant offense was committed. 9 In People v Acevedo (17 NY3d 297 [2011]), this Court addressed the situation in which defendants who were sentenced to enhanced punishments on the basis of prior predicate felonies had themselves subsequently moved for resentencing on their predicate crimes to correct sentences that had been imposed illegally without the statutorily-required periods of postrelease supervision (PRS). The Court held that defendants will not be permitted, by seeking vacatur and resentencing, to render the prior convictions useless as predicate convictions (id. at 303). The Court expressly left open the question presented in this case – whether a “bona fide” resentence requested by DOCCS (rather than a defendant) under Correction Law § 601-d and Penal Law § 70.85 following People v Sparber (10 NY3d 457 [2008]) would render a prior conviction useless as a predicate (Acevedo, supra, 17 NY3d at 303). Since Acevedo, the Appellate Divisions have reached different answers to that question. The First Department has held that, when the resentencing is requested by DOCCS rather than by a defendant, “the resentencing date controls whether the conviction meets the sequentiality requirement for sentencing as a persistent violent felony offender” (People v Sanders, 99 AD3d 575 [2012], lv granted ___ AD3d ___ [Dec. 27, 2012] [Sweeny, J.]; see also People v Snipes, ___ AD3d ___, 955 NYS2d 50 [Dec. 11, 2012]; People v Butler, 88 AD3d 470 [2011], lv denied 18 NY3d 992 [2012]). The Second Department, however, has followed 10 the reasoning of the Third Department in Mr. Boyer’s case, holding that where a defendant is resentenced merely to correct a Sparber error, “the operative sentencing date for the purposes of the predicate felony statutes remains the date of the original sentencing” (People v Naughton, 93 AD3d 809, 811 [2012], lv denied 19 NY3d 865 [2012]; see also People v Griffin, 99 AD3d 720, 721-722 [2012]). The reasoning of the First Department more faithfully follows the holding of this Court in Acevedo. “The more reasonable construction [of the Penal Law] . . . is that under section 70.08 sequentiality applies as between predicate convictions as well as between present and predicate convictions” (Morse, supra, 62 NY2d at 225). When a defendant “did nothing to alter his status” (Butler, supra, 88 AD3d at 473), even when a defendant (as in Mr. Boyer’s case) is unsuccessful at seeking resentencing before commission of the present offense, but the government seeks and obtains the resentencing after commission of the present offense, based on an illegality that was in no way attributable to the defendant, then it is the government that has changed the sequentiality. Mr. Boyer did not seek resentencing as a “tactic . . . simply to leapfrog a sentence forward so as to vitiate its utility as a sentencing predicate” (Acevedo, supra, 17 NY3d at 302; cf. also People v Bell, 73 NY2d 153, 165 [1989]). It was DOCCS that chose the tactic here: it could have left the prior conviction alone and not sought imposition of a term of PRS on Mr. Boyer. Instead, DOCCS chose to 11 seek resentencing of Mr. Boyer on the prior conviction, to add another component to the earlier sentence. In doing so, DOCCS also extended the time that Mr. Boyer could be re-confined beyond the time that he could otherwise have been released for good behavior (see People v Williams, 19 NY3d 100, 104 [2012]). DOCCS received those benefits while running the risk that the resentencing would change the sequentiality of the convictions, such that Mr. Boyer would not now be a persistent violent felony offender (although his exposure to being adjudicated a persistent felony offender might be extended in the future [see People v Acevedo, 75 AD3d 255, 259 n * (1st Dept 2010), rev’d 17 NY3d 297 (2011)]). As such, because it was the government that chose to receive the benefits of resentencing, then the government must also accept the consequences of resentencing, including the change in sequentiality. Because an out-of-sequence conviction simply cannot be used as a predicate offense (see People v Samms, 95 NY2d 52, 57-58 [2000]), Mr. Boyer’s sentence as a persistent violent felony offender must be vacated, so that he can be resentenced as a second felony offender (see People v Boyer, 19 AD3d 804, 806 [3d Dept 2007], lv denied 5 NY3d 804 [2005]). 12 POINT TWO: BECAUSE THE TRIAL COURT FAILED TO ADVISE MR. BOYER THAT A DIRECT CONSEQUENCE OF HIS PLEA WOULD BE THAT HIS SENTENCE WOULD BE CONSECUTIVE TO AN UNDISCHARGED SENTENCE ON A PRIOR CONVICTION, MR. BOYER’S PLEA CANNOT BE DEEMED KNOWING, VOLUNTARY AND INTELLIGENT, AND MR. BOYER MUST BE GIVEN THE OPPORTUNITY TO WITHDRAW THE PLEA A plea of guilty cannot be upheld unless it “represents a voluntary and intelligent choice among the alternative courses of action open to the defendant” (North Carolina v Alford, 400 US 25, 31 [1970], citing Boykin v Alabama, 395 US 238, 242 [1969]; see also People v Bryant, 180 AD2d 874, 875-876 [3d Dept 1992], citing People v Nixon, 21 NY2d 338 [1967]). “The clear import of Boykin and its progeny is that the Trial Judge has a vital responsibility to make sure [that the accused] has full understanding of what the plea connotes and of its consequence” (People v Harris, 61 NY2d 9, 19 [1983]; see also People v Gravino, 14 NY3d 546, 553 [2010]). When a court fails to advise a defendant of the direct consequences of the plea, “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” (People v Hill, 9 NY3d 189, 191 [2007], cert denied 553 US 1048 [2008]). In People v Ford (86 NY2d 397 [1995]), this Court differentiated between the direct and collateral consequences of a plea, describing direct consequences as 13 those that have “a definite, immediate and largely automatic effect on defendant’s punishment” (id. at 403). “The importance of the distinction is that a trial court must advise a defendant of the direct consequences[, and a] court’s failure to comply with that obligation requires reversal because harmless error analysis is inapposite” (People v Harnett, 16 NY3d 200, 205 [2011]). Following Ford, all four Appellate Divisions held that, when a defendant enters a guilty plea and is not told that his sentence must run consecutively to any undischarged sentence, the plea is not knowingly entered and the defendant must be permitted to withdraw it (see e.g. People v Bobo, 41 AD3d 129 [1st Dept 2007], lv denied 9 NY3d 873 [2007]; People v Morbillo, 56 AD3d 694 [2d Dept 2008], lv denied 12 NY3d 786 [2009]; People v George, 59 AD3d 858, 859 [3d Dept 2009]; see also People v Ingoglia, 305 AD2d 1002, 1003 [4th Dept 2003], lv denied 100 NY2d 583 [2003]; People v Ford, 143 AD2d 522 [4th Dept 1988]; cf. People v Newbould, 83 AD3d 1570, 1571 [4th Dept 2011], lv denied 17 NY3d 904 [2011]; People v Wilson, 299 AD2d 222 [1st Dept 2002], lv denied 99 NY2d 566 [2002]). Those holdings were consistent with Ford and Harnett, because the imposition of consecutive sentences was a “definite, immediate and largely automatic” consequence of the guilty plea, and those defendants (like Mr. Boyer) were not advised of that direct consequence. 14 Then, in a different context, this Court decided People ex rel. Gill v Greene (12 NY3d 1 [2009], cert denied 130 S Ct 86 [2009]), holding that, when a court sentences a defendant after a trial, the court is not required to state that the sentence will be consecutive to a prior undischarged sentence. The Court noted that, when pronouncing a sentence, “[n]othing in [Penal Law § 70.25 (2-a)] and nothing in the Constitution requires the sentencing court to say the word ‘consecutive,’ either orally or in writing” (Gill, 12 NY3d at 6). In explaining that Mr. Gill was never given any reason to think that his sentences would run concurrently, this Court noted that “nothing in the record [showed that] the [sentencing] court knew that previous undischarged sentences existed” (id.). Since then, some of the Appellate Divisions (including the Third Department in Mr. Boyer’s case) have mistakenly applied this Court’s holding in Gill in a context where it was never meant to be applied, to determine whether a defendant’s guilty plea was knowingly, voluntarily and intelligently entered. These appellate courts are now holding that a court taking a guilty plea need no longer advise the defendant of a direct consequence of his guilty plea, that he must receive consecutive sentences (see People v Watts, 78 AD3d 1593 [4th Dept 2010], lv denied 16 NY3d 838 [2011]; People v Lagas, 76 AD3d 384, 387 [3d Dept 2010], lv denied 16 NY3d 744, 860 [2011], cert denied ___ US ___, 132 S Ct 156 [2011]; see also People v Azor, 2011 NY Misc Lexis 6552, 2011 NY Slip Op 15 33585U [S Ct Kings County 2011]; People v Fuller, 28 Misc 3d 1144, 1148-1150 [S Ct NY County 2010]). In Mr. Boyer’s case (and arguably in the other cases as well), the lower courts erred in doing so. Unlike the context of the sentencing after trial in Gill, the entry of a guilty plea is a context where both the Constitution and the New York statute require something more. “‘[I]f a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void’” (Boykin v Alabama, 395 US 238, 243 n. 5 [1969], quoting McCarthy v United States, 394 US 459, 466 [1969]): “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. Although the court is not required to engage in any particular litany when allocuting the defendant, due process requires that the record be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant” (People v Catu, 4 NY3d 242, 244-245 [2005] [internal quotation marks and citations omitted]; see also People v Mox, ___ NY3d ___, 2012 NY Lexis 3598, 2012 NY Slip Op 8441 [Dec. 11, 2012]; People v McAlpin, 17 NY2d 936 [2011]). The statute governing plea bargains (CPL 220.50 [5]) also requires that, when a sentence is agreed upon as part of a guilty plea, the court must orally or in writing “state the sentence agreed upon as a condition of such plea.” 16 As this Court held in Catu, the trial court must explain to a defendant during plea bargaining if his sentence will include a term of postrelease supervision, and the failure to do so requires reversal of the conviction obtained after a plea (4 NY3d at 245). This Court in Harnett (supra, 16 NY3d at 205) held that “[t]he 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 postrelease supervision, a fine.” The Court reiterated that direct consequences “are those that have ‘a definite, immediate and largely automatic effect on defendant’s punishment’” (id., quoting Ford, supra, 86 NY2d at 403). The same must be said of a sentence that must run consecutively to a prior undischarged sentence under Penal Law § 70.25 (2-a). It is a “core component” of a defendant’s term of imprisonment, with a “definite, immediate and largely automatic effect on defendant’s punishment.” It is a “direct consequence” of Mr. Boyer’s plea, and its omission from Mr. Boyer’s plea colloquy renders his plea per se invalid. By contrast, the trial court need not explain during sentencing after a trial that the Penal Law requires a consecutive sentence, because it does not matter whether a defendant in such a case understands the consequences at that point. Such a defendant has “rolled the dice” and gone to trial, and, if there was any plea 17 bargaining before the trial, that was the time for the trial court to make sure that the defendant understood the direct consequences of a possible plea. During plea bargaining that involves an undischarged sentence on a prior conviction, the trial court must explain to a defendant that a direct consequence of the plea will be a sentence that is consecutive to the previous, undischarged sentence. That was not done in Mr. Boyer’s case, so his conviction must be reversed and he must be offered the opportunity to withdraw his plea. CONCLUSION For the reasons set forth above, Mr. Boyer’s conviction must be reversed. As set forth in Point One, he was improperly sentenced as a persistent violent felony offender, and that sentence must be vacated. As set forth in Point Two, he must be given the opportunity to withdraw his plea before he can be resentenced, because he was not advised of a direct consequence of his plea. Dated: February 4, 2013 Respectfully submitted, _________________________ Mark C. Davison, Esq. Davison Law Office PLLC P.O. Box 652 Canandaigua, New York 14424