People v. Chander

• Decision Date: 15 January 2014
• Citation: 978 N.Y.S.2d 331,2014 N.Y. Slip Op. 00235,113 A.D.3d 697
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., respondent, v. Vipan CHANDER, appellant.

113 A.D.3d 697
978 N.Y.S.2d 331
2014 N.Y. Slip Op. 00235

The PEOPLE, etc., respondent,
v.
Vipan CHANDER, appellant.

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

Jan. 15, 2014.

Lynn W.L. Fahey, New York, N.Y. (Janet Claire Le of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Daniel Bresnahan of counsel), for respondent.

REINALDO RIVERA, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.

[978 N.Y.S.2d 332]

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum, J.), rendered April 4, 2011, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the plea is vacated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings on the indictment.

Based on the record before this Court, we reject the defendant's contention that the Supreme Court did not have jurisdiction over this criminal action ( see generallyCPL 100.05; 180.10[1], [2]; 190.50).

The defendant also argues that his plea was not knowingly, voluntarily, and intelligently entered because the Supreme Court failed to adequately advise him that he would not be permitted to withdraw his plea if he violated a condition of the plea agreement. Contrary to the defendant's contention, the record, taken as a whole, indicates that the defendant was informed that he would be subjected to an enhanced sentence, without the option of withdrawing his plea, in the event that he failed to comply with the conditions of the plea ( see People v. Akhtar, 13 A.D.3d 383, 383–384, 786 N.Y.S.2d 549; People v. Hughes, 260 A.D.2d 657, 658, 688 N.Y.S.2d 278; People v. Gibbs, 161 A.D.2d 661, 662, 555 N.Y.S.2d 439). Based on the record, there is no basis upon which the defendant might have misconstrued the meaning of the Supreme Court's warning ( see People v. Fecu, 61 A.D.3d 991, 876 N.Y.S.2d 899; People v. Akhtar, 13 A.D.3d at 384, 786 N.Y.S.2d 549; cf. Innes v. Dalsheim, 864 F.2d 974; People v. Elliot, 204 A.D.2d 565, 612 N.Y.S.2d 173).

The defendant also challenges his plea on the basis that the court made no mention of postrelease supervision at the time he entered into the plea agreement. Contrary to the People's contention, under the circumstances of this case, the defendant's claim is not foreclosed based on the defendant's failure to make this argument in his...