People v. Brewington

• Decision Date: 02 April 2015
• Docket Number: 105901.
• Citation: 2015 N.Y. Slip Op. 02805,127 A.D.3d 1248,8 N.Y.S.3d 439
• Parties: The PEOPLE of the State of New York, Respondent, v. Rubin BREWINGTON, Appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1248

8 N.Y.S.3d 439

2015 N.Y. Slip Op. 02805

The PEOPLE of the State of New York, Respondent

v.Rubin BREWINGTON, Appellant.

105901.

Supreme Court, Appellate Division, Third Department, New York.

April 2, 2015.

William T. Morrison, Albany, for appellant.

P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.

Before: LAHTINEN, J.P., GARRY, ROSE and DEVINE, JJ.

Opinion

GARRY, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered January 7, 2013, convicting defendant upon his plea of guilty of the crime of burglary in the second degree (two counts).

In satisfaction of two multicount indictments, defendant agreed to plead guilty to two counts of burglary in the second degree. Defendant also executed an appeal waiver, but reserved his right to appeal on the sole issue of whether he could properly be sentenced as a persistent violent felony offender. At sentencing, defendant argued that a prior conviction from 1999 was obtained in violation of his constitutional rights and could not be used as a predicate violent felony (see CPL 400.15[7][b] ; 400.16).¹ County Court found that the People had met their burden of proving the predicate convictions, and sentenced defendant as a persistent violent felony offender to concurrent prison terms of 16 ½ years to life on each count. Defendant appeals.

Defendant challenges the use of his 1999 conviction as a predicate violent felony, asserting that at the time of his plea to that charge he was not informed that the resulting sentence would include a mandatory period of postrelease supervision (hereinafter PRS). “Notwithstanding his failure to appeal from the [1999] conviction, defendant had an independent statutory right to challenge its use as a predicate conviction on the ground it was unconstitutionally obtained” (People v. Johnson, 196 A.D.2d 408, 410, 601 N.Y.S.2d 103 [1993], lv. denied 82 N.Y.2d 806, 604 N.Y.S.2d 942, 624 N.E.2d 1037 [1993], citing People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170 [1983] ; see People v. Abdus–Samad, 69 A.D.3d 516, 517, 894 N.Y.S.2d 41 [2010], lv. denied 15 N.Y.3d 746, 906 N.Y.S.2d 819, 933 N.E.2d 218 [2010] ). It is well established that a court must advise a defendant of the direct consequences of a plea prior to sentencing, specifically including the existence and duration of any PRS requirement (see People v. Catu, 4 N.Y.3d 242, 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005] ; People v. Bolivar, 118 A.D.3d 91, 93–94, 986 N.Y.S.2d 631 [2014] ; People v. Brown, 107 A.D.3d 1303, 1304, 967 N.Y.S.2d 538 [2013] ).

Here, the transcript of defendant's 1999 plea allocution reveals that he was not advised that his plea would result in a mandatory period of PRS. Rather, defendant was first informed about the PRS through the court's pronouncement of his sentence. Defendant made comments expressing his surprise as to the PRS immediately thereafter, but he was not afforded an opportunity to withdraw his plea, either during his original sentencing or when he was later resentenced to adjust the duration of the PRS to conform with the requirements of Penal Law § 70.45. Given the apparent infirmities in defendant's 1999 plea allocution, we find that County Court erred in accepting the resulting conviction as a predicate violent felony for the purpose of sentencing defendant as a persistent violent felony offender (see People v. Santiago, 91 A.D.3d 438, 439, 936 N.Y.S.2d 37 [2012] ; People v. Brown, 67 A.D.2d 949, 950, 413 N.Y.S.2d 218 [1979] ; see generally People v. Province, 47 Misc.3d 286, 2 N.Y.S.3d 320 [Sup.Ct., N.Y. County 2015] ).

Accordingly, de...