People v. Boyd
| Decision Date | 17 April 2008 |
| Docket Number | 2252. |
| Citation | 856 N.Y.S.2d 71,51 A.D.3d 325,2008 NY Slip Op 03402 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PAUL BOYD, Appellant. |
| Court | New York Supreme Court — Appellate Division |
TOM, J.P.
At issue on this appeal is whether acceptance of defendant's guilty plea in exchange for a negotiated determinate sentence without advising him of the duration of the period of postrelease supervision to be imposed or the permissible statutory range for the period of such supervision deprived him of the ability "to knowingly, voluntarily and intelligently choose among alternative courses of action" so as to require reversal of the judgment of conviction (People v Catu, 4 NY3d 242, 245 [2005]). Under the particular facts of this matter, this Court concludes that merely telling defendant "there is a postrelease supervision that's mandatory," without further explanation, was insufficient to accord him due process (see id.).
Under separate indictments, defendant was charged with a total of four counts of robbery in the first and second degrees. He entered a plea of guilty to two counts of first degree robbery in full satisfaction of the indictments and waived his right to appeal in return for concurrent determinate sentences of 12 years on each count. At plea, the court specifically found that defendant was not a predicate felony offender. After the allocution, the prosecutor asked if the court had mentioned postrelease supervision. The court responded: ? Defendant simply answered "Yes," and the court thereupon accepted his plea.
Although defendant was sentenced in accordance with the plea agreement, the court did not impose a period of postrelease supervision to follow the determinate prison term. By statute, a defendant who is not a predicate felony offender is subject to mandatory postrelease supervision ranging from 2½ to 5 years, at the court's discretion (Penal Law § 70.45 [2] [f]).
On appeal, defendant contends that the court violated his due process rights by failing to apprise him of the range of the mandatory period of postrelease supervision and the duration of supervision to which he is subject. He requests that this Court reverse his conviction and vacate the pleas.
In response, the People argue that the trial court afforded defendant due process by advising him that postrelease supervision is mandatory and that, in any event, defendant's failure to immediately state an objection or move to vacate the pleas renders any error unpreserved. However, we note that the duration of postrelease supervision was neither pronounced at sentence nor otherwise entered on the court's records (cf. People v Lingle, 34 AD3d 287 [2006], lv granted 9 NY3d 877 [2007]), and by requesting that the matter be remitted so that postrelease supervision may be added to defendant's sentence for such period of time as Supreme Court determines, in its discretion, the People implicitly concede the illegality of the sentence.
The particular question confronting this Court is whether a defendant contemplating entry of a guilty plea can knowingly and intelligently choose among available alternatives without knowing the duration of postrelease supervision to which he is subject upon his release from incarceration or even the limits imposed by statute on that period of supervision. We answer this question in the negative. If postrelease supervision, like incarceration, is a significant component of sentence (see Catu, 4 NY3d at 245), then the duration of supervision and its relationship to the range provided by statute are likewise material to a defendant's ability to intelligently choose among alternative courses of action (see People v Van Deusen, 7 NY3d 744 [2006]). Conceptually, if the postrelease supervision component of a sentence is "significant" (Catu, 4 NY3d at 245), then it is no more reasonable to conclude that a knowing and voluntary choice among available alternatives can be made in the absence of knowledge of the length of the period of supervision than to conclude that due process is served merely by informing a defendant that he will be subject to incarceration without disclosing its duration. In addition, the statutory provision for a discretionary period of postrelease supervision presents a defendant with the opportunity to negotiate between the time to be spent under supervision and the time to be served in confinement.
The People contend that the length of postrelease supervision is "clearly delineated in the Penal Law, of which defendant had constructive notice." They further speculate that "counsel surely understood the [postrelease supervision] rule and defendant averred that he had discussed the plea bargain with counsel." Thus, they argue, the record "provides no basis to conclude that defendant misunderstood the length of the term."
This argument is disingenuous. First, defendant could not possibly understand the length of a term of postrelease supervision that, as the People concede, has yet to be imposed on remand. Since the period of supervision is discretionary within the statutory range, it is reasonable to expect that if the parties had been aware of it in the course of plea negotiations, the duration of the period of supervision would have been specified in the plea agreement along with the period of incarceration.
Second, "due process requires that the record must be clear that `the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant'" (People v Ford, 86 NY2d 397, 403 [1995], quoting North Carolina v Alford, 400 US 25, 31 [1970]). Thus, the operative question is whether the record establishes that defendant understood the plea (see People v Parilla, 8 NY3d 654, 660 [2007]), not whether defendant can demonstrate that he misunderstood its terms. The Court of Appeals has recently made it quite clear that the question is not subject to harmless error analysis (People v Hill, 9 NY3d 189 [2007], revg 39 AD3d 1 [2007]; see also Van Deusen, 7 NY3d at 746 []).
The People argue that this matter must be remitted to Supreme Court for imposition of a period of postrelease supervision (Penal Law § 70.45 [2] [f]). Whatever the duration the court might decide upon, the sentence would suffer from the same infirmity identified in People v Goss (286 AD2d 180, 184 [2001]): the defendant may not be said to have knowingly agreed to the period of postrelease supervision to follow his determinate sentence (see Hill, 9 NY3d at 192). Even if the court were to reduce the term of incarceration by the same duration so that the total period of incarceration plus postrelease supervision is no greater than the 12-year sentence originally agreed upon, it would not render the plea knowing and voluntary (see id.; Van Deusen, 7 NY3d at 746).*
There is no merit to the People's contention that defendant failed to preserve any objection to the court's allocution by immediately registering a protest or moving to vacate the plea agreement. While such a challenge must ordinarily be preserved by a motion to withdraw the plea under CPL 220.60 (3), this does not apply "where a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution" (People v Louree, 8 NY3d 541, 545-546 [2007]). Implicit in this rule is that the trial judge must fully advise a defendant of the terms of postrelease supervision so as to permit a knowing and intelligent choice to be made among alternative courses of action. As a matter of due process, "[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" (Ford, 86 NY2d at 402-403). Without knowledge of the period of postrelease supervision, it was simply not possible for defendant herein to possess the full understanding necessary to an informed plea.
Though the prosecutor directed the court's attention to this problem during allocution, the court nevertheless failed to advise defendant of the duration of postrelease supervision. Defendant should not be penalized for the court's failure to fulfill its constitutional burden before entering a plea. To rule otherwise would shift the court's allocution obligations to defendant. The duty to make sure the record establishes that the defendant's plea represents a voluntary and intelligent choice among his available alternatives is imposed on the court, not on the defendant (Louree, 8 NY3d at 545). It is dispositive that the record fails to establish that defendant was made aware of either the statutory range of the period of postrelease supervision or the particular period to which he would be subjected (see Goss, 286 AD2d at 184 []). Thus, defendant may challenge the sufficiency of the allocution on direct appeal.
A contrary holding would pose an insurmountable dilemma, for if a defendant was misinformed concerning postrelease supervision, he could hardly be expected to withdraw his plea until he received accurate information; and if definitive information was not imparted until sentence was pronounced, the defendant would be precluded from withdrawing his plea because a motion under CPL 220.60 (3) is only available before sentencing (id.). Here, it appears that the parties and the court may have proceeded under the misconception that the period of postrelease supervision was mandated by statute. The statement, "there is a...
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People v. Boyd
...Division, with one Justice dissenting, reversed, vacated defendant's plea and sentences and reinstated both indictments (51 A.D.3d 325, 856 N.Y.S.2d 71 [2008]). The majority concluded that defendant was deprived of a complete understanding of the implications of entering a guilty plea becau......
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People v. Boyd
...of New York, Appellant, v. Paul BOYD, Respondent. Mo. No. 1258. Court of Appeals of New York. December 16, 2008. Reported below, 51 A.D.3d 325, 856 N.Y.S.2d 71. Motion for assignment of counsel granted and Dominic J. Sichenzia, Esq., One Old Country Road, Suite 390, Carle Place, New York 11......