People v. Bush, 18

CourtNew York Court of Appeals
Writing for the CourtChief Judge DiFIORE.
Citation38 N.Y.3d 66,187 N.E.3d 1047,167 N.Y.S.3d 435
Parties The PEOPLE of the State of New York, Respondent, v. Jeffery BUSH, Appellant.
Docket Number18
Decision Date22 March 2022

38 N.Y.3d 66
187 N.E.3d 1047
167 N.Y.S.3d 435

The PEOPLE of the State of New York, Respondent,
Jeffery BUSH, Appellant.

No. 18

Court of Appeals of New York.

March 22, 2022

167 N.Y.S.3d 436

Janet E. Sabel, The Legal Aid Society, New York City (Ying-Ying Ma of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn (Arieh Schulman and Leonard Joblove of counsel), for respondent.


Chief Judge DiFIORE.

38 N.Y.3d 68

Defendant challenges the voluntariness of his guilty plea, asserting that the court in its plea colloquy failed to advise him that the 20 days of community service to be imposed would be a condition of a sentence of a one-year conditional discharge. At the outset of the sentencing proceeding, the defense counsel and prosecutor affirmatively acknowledged to the court that the bargained-for sentence to be imposed was a conditional discharge. Prior to imposition of that sentence, defendant who had the practical ability to do so, failed to protest or otherwise seek to withdraw his guilty plea. As a result, defendant's claim that the court's imposition of an alleged new sentence rendered his

187 N.E.3d 1048

guilty plea involuntary is unpreserved for our review.

After initially being charged by felony complaint in May 2017, defendant was indicted in July 2017, for two counts of criminal possession of a controlled substance in the third degree, a class B felony offense, and six other related offenses. On September 18, 2017, in open court, the People offered a reduced plea to the class A misdemeanor of criminal possession of a controlled substance in the seventh degree, the eighth count of the indictment, with a promised sentence of probation. An off-the-record discussion with the court and counsel ensued, whereupon the People changed their sentence offer to 20 days of "community service instead of probation." Defense counsel sought a recall of the case to confer with defendant. On the recall, the court informed defendant that defense counsel had conveyed to the People defendant's interest in community service and

167 N.Y.S.3d 437

characterized the People's plea offer as "reasonable." Defense counsel accepted the plea offer and stated that "the plea is conditioned on him doing 20 days of community service, and if he does not do the community service, he can face up to one year [in] jail." A mandatory surcharge and a six-month driver's license suspension were undisputedly part of the promised sentence at the time of the plea.

Defendant was placed under oath and the court conducted a thorough plea allocution, eliciting defendant's waiver of his constitutional rights and his admission of his factual guilt to the reduced crime. Defendant confirmed that he had sufficient time to speak with his attorney and was satisfied with his representation.

38 N.Y.3d 69

When defendant expressed concern about "the timing of the community service," the court responded, "I will give you more than enough reasonable time to do it." The court also advised defendant that, as a condition of the plea, he could not be rearrested and "must return on the adjournment date." Defense counsel stated that defendant wanted to speak with his employer about scheduling the community service. In response, the court told defendant that it would not "specify" a schedule for the performance of the community service. The court again elicited from defendant that he had adequate time to speak with his counsel and was satisfied with counsel's representation.

In pleading guilty to the misdemeanor count, defendant was advised by the court that the sentence promise would be "20 days of community service." The court further stated "[y]ou understand you can't get re-arrested. You must return on the adjournment date. And you must complete the community service or else there will be a one year jail alternative." Defendant indicated that he understood and the matter was adjourned for sentencing to November 28, 2017.

At the outset of the sentencing proceeding, defense counsel advised the court that defendant had completed his 20 days of community service. After noting that "[c]ommunity service [was] completed," the court asked the parties, "[a]nd the promise is a C.D.?" Defense counsel and the prosecutor each replied "[y]es." The court confirmed that, during the relevant time period between plea and sentence, there had been no new arrests and then elicited from defense counsel that there was no "legal reason why sentence should not be imposed." Defense counsel and defendant each declared they were ready for sentence and defendant declined to say anything further. The court told defendant, "I'm glad you did the community service, and I'm glad the case is over." The court then imposed sentence—"[t]he sentence of the Court is a conditional discharge; $250 in court costs" and "a six-month

187 N.E.3d 1049

license suspension." That same day, defendant signed the court's "conditional discharge" form, which states that defendant was sentenced to "[a] 1 year period of Conditional Discharge commencing this day." The $250 surcharge was noted on the form which also set forth the statutory conditions that defendant may be required to meet in the discretion of the court to insure that he will lead a law-abiding life "during the period of Conditional Discharge" (see Penal Law § 65.10 [2] ). By statute the term of a conditional

38 N.Y.3d 70

discharge in the case of a misdemeanor is one year ( Penal Law § 65.05 [3] [b] ) and the one year was completed without incident.

On direct appeal, defendant argued that his guilty plea was involuntary as the court did not mention the one-year conditional discharge sentence at the time of the plea and, as a remedy, sought dismissal of the indictment. The Appellate Division affirmed, holding that defendant's claim was unpreserved (

167 N.Y.S.3d 438

185 A.D.3d 1048, 126 N.Y.S.3d 405 [2d Dept. 2020] ). A Judge of this Court granted defendant leave to appeal ( 36 N.Y.3d 928, 135 N.Y.S.3d 345, 159 N.E.3d 1112 [2020] ) and we now affirm.

Defendant claims that the court's plea colloquy was deficient in establishing for the record the specific terms of the sentence promise, thereby infecting the voluntariness of the guilty plea. It is axiomatic that the "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 N.Y.2d 397, 402-403, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ). Further, any sentence promise made at the time of plea is as a matter of law and strong public policy conditioned upon its being lawful (see People v. Selikoff, 35 N.Y.2d 227, 241, 360 N.Y.S.2d 623, 318 N.E.2d 784 [1974] ). When "a defect in a plea allocution is clear on the face of the record and implicates due process, the defendant nonetheless must preserve his or her claim that the defect made the plea involuntary unless the defendant has no practical ability to do so" ( People v. Williams , 27 N.Y.3d 212, 221-222, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; see also People v. Conceicao, 26 N.Y.3d 375, 381, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ).

On this record, there can be no dispute that defendant neither objected to the sentence promise as described during either the plea or the sentencing proceeding nor otherwise protested the voluntary nature of his guilty plea. To be sure, defendant did not move to withdraw his guilty plea prior to the imposition of sentence as required by CPL 220.60 (3). Instead, defendant belatedly asserts on direct appeal that his plea was involuntary because the court failed to advise him at the plea proceeding of the sentence to be imposed. But, he does not seek the vacatur of his guilty plea and the reinstatement of the indictment, the very relief provided upon a timely CPL 220.60 (3) motion. Rather, he seeks dismissal of the indictment. To advance this claim on appeal, defendant invokes the narrow exception to the preservation requirement involving the plea allocution, claiming "the particular circumstances of [the] case

38 N.Y.3d 71

reveal that [he] had no actual or practical ability to object to an alleged error in the taking of [the] plea that was clear from the face of the record" ( Conceicao, 26 N.Y.3d at 381, 23 N.Y.S.3d 124, 44 N.E.3d 199; see also People v. Louree, 8 N.Y.3d 541, 545-546, 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007] ).1

187 N.E.3d 1050

The record demonstrates that, prior to the imposition of sentence, defendant had the actual and practical ability to object and preserve the claim he now makes—that his guilty plea was involuntary because of a deficient plea allocution as to the sentence promise, a direct consequence of the plea. The record before us is plain. At the outset of the sentencing...

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