People v. Felman

• Decision Date: 02 June 1988
• Citation: 137 A.D.2d 341,529 N.Y.S.2d 395
• Parties: The PEOPLE of the State of New York, Respondent, v. Leo W. FELMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 395

529 N.Y.S.2d 395

137 A.D.2d 341

The PEOPLE of the State of New York, Respondent, v. Leo W. FELMAN, Appellant.

Supreme Court, Appellate Division Third Department.

June 2, 1988.

Raymond J. Acciardo, Sr., Glenmont, for appellant.

James B. Canfield, Dist. Atty. (Everett A. Mayhew, Jr., of counsel), Troy, for respondent.

Before CASEY, J.P., and WEISS, MIKOLL, YESAWICH and LEVINE, JJ.

WEISS, Justice.

In July 1985, defendant was indicted on a charge of falsifying business records in the first degree for having altered the inventory records of his employer, Regan's Steak House and Seafood Restaurant, located in the Town of North Greenbush, Rensselaer County. The indictment related to a scam in which defendant and William Sayers obtained food from an Albany County wholesaler, charged the goods to the restaurant's account and then resold the items for personal profit ( see, People v. Felman, 141 A.D.2d 889, 529 N.Y.S.2d 400). Pursuant to a negotiated plea bargain, defendant eventually pleaded guilty as charged and was sentenced as a second felony offender to an indeterminate prison term of 1 1/2 to 3 years, to run concurrently with a 3 1/2- to 7-year sentence imposed the preceding week in Albany County for a conviction of grand larceny in the second degree arising from the same acts (id.).

On this appeal, defendant challenges, inter alia, the propriety of the plea proceedings and the severity of his sentence. As characterized by the District Attorney's brief, defendant's plea was the product of "labrynthine [sic ] plea negotiations". The parties entered into a written plea agreement, approved by County Court, by which defendant agreed to plead guilty as charged and to pay restitution in the amount of $15,000. In return, the People agreed that defendant would be allowed to vacate a January 1985 felony conviction of criminal sale of marihuana in the third degree "and replace said conviction with a plea of guilty to a Class A Misdemeanor of Criminal Sale of Marijuana in the fourth degree." It was further stipulated that defendant would be placed on five years' probation, during which period full restitution would be made. The agreement was qualified, however, in that the "reopening of [defendant's] prior felony conviction" was contingent on an initial $5,000 payment. Upon the deposit of such moneys, the People agreed to waive any objection to a motion to vacate the prior conviction pursuant to CPL article 440.

According to defendant, the agreement was designed to afford him the option of paying restitution and avoiding a prison term. Both parties apparently recognized, however, that defendant's January 1985 felony marihuana conviction stood as an obstacle to the plea agreement; a sentence of imprisonment is mandated for a second felony offender (Penal Law § 70.06[2] ). Thus, in order to implement the plea agreement it was essential to vacate the prior felony conviction.

On September 8, 1986, defendant pleaded guilty to the indictment. During the allocution, defense counsel stated that it was his understanding that County Court and the new Assistant District Attorney would abide by the above-described plea agreement. All concurred. At the January 13, 1987 sentencing, defendant, having failed to make the initial $5,000 restitution payment, was sentenced as a predicate felon to a term of 1 1/2 to 3 years' imprisonment, the minimum authorized by law (see, Penal Law § 70.06[3][e]; [4][b] ). Notably, no reference was made to the plea agreement, and no attempt was made to controvert the propriety of the plea or the sentence.

Even were we to conclude that defendant failed to preserve the present issues for appeal, we find that the matter warrants review in the interest of justice ( see, People v. Raucci, 136 A.D.2d 48, 50, 525 N.Y.S.2d 730; People v. Maye, 129 A.D.2d 204, 205, 517 N.Y.S.2d 330; cf., People v. George, 137 A.D.2d 876, 524 N.Y.S.2d 557). It is fundamental that the breach of a promise made to induce a guilty plea entitles a defendant to either withdraw his plea or be resentenced (People v. Raucci, supra ). Any promises made must be lawful and appropriate ( People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784, cert. denied 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822). We do not dispute the propriety of including restitution as an element of the plea agreement (see, People v. Felman, supra ). The condition relative to vacating the prior felony marihuana conviction, however, was wholly inappropriate. As indicated, vacatur of the prior conviction was essential to implement the promise of no jail time, an unquestionably crucial element of the plea bargain. The prosecutor, however, had no authority to fulfill this promise. The vacatur of the judgment of conviction rests solely in the discretion of the court of conviction upon one of the grounds enumerated in CPL 440.10, each of which evidences a substantial flaw in the judgment being challenged. While the statutory list is not exclusive, and a court retains an inherent authority to address other matters, we perceive no basis upon which to vitiate a judgment simply to implement a subsequent plea-bargain agreement. Since the prosecutor lacked the authority to reopen the prior felony conviction, the plea agreement was invalid from its inception ( see, People v. Selikoff, supra, at 241, 360 N.Y.S.2d 623, 318 N.E.2d 784). This holds true regardless of County Court's approval of the written plea agreement. Accordingly, we find that defendant is entitled to withdraw his plea of guilty ( see, People v. Traynor, 101 A.D.2d 898, 475 N.Y.S.2d 590). Having so decided, we need not address defendant's further contentions.

Judgment reversed, as a matter of discretion in the interest of justice, defendant's plea of guilty vacated and matter remitted to the County Court of Rensselaer County for further proceedings not inconsistent with this court's decision.

MIKOLL and YESAWICH, JJ., concur.

CASEY, J.P., concurs in a separate opinion.

LEVINE, J., dissents and votes to affirm in an opinion.

CASEY, Justice Presiding (concurring).

It is my opinion that County Court does not have the power to vacate a prior judgment of conviction obtained in that court to accommodate a plea bargain, the sole purpose of which is to avoid the consequences of the second felony offender statute. Accordingly, I agree with the majority that the judgment in this action should be reversed and defendant's guilty plea vacated since the court lacks the authority to fulfill a promise which induced the guilty plea ( see, People v. Pinaud, 132 A.D.2d 580, 517 N.Y.S.2d 560, lv. denied 70 N.Y.2d 802, 522 N.Y.S.2d 120, 516 N.E.2d 1233).

Conceding that County Court would have the inherent power to correct errors in one of its final judgments, such power of correction is limited to mistakes or irregularities ( cf., People v. Minaya, 54 N.Y.2d 360, 445 N.Y.S.2d 690, 429 N.E.2d 1161, cert. denied 455 U.S. 1024, 102 S.Ct. 1725, 72 L.Ed.2d 144; Herpe v. Herpe, 225 N.Y. 323, 122 N.E. 204), and does not include the inherent power to amend a judgment of conviction in a matter of substance, absent fraud or misrepresentation (cf., Matter of Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425). Where, as here, a prior judgment of conviction for a felony has been entered and no appeal has been taken therefrom, the only statutory procedure provided for vacatur of the prior judgment of conviction is a motion pursuant to CPL 440.10. We have held that, "A court does not have unlimited jurisdiction to entertain motions pursuant to CPL 440.10. The motion must be made upon one or more of the eight grounds set forth in the section (CPL 440.10[1] )" (People v. Cooks, 113 A.D.2d 975, 976, 493 N.Y.S.2d 646, affd. 67 N.Y.2d 100, 500 N.Y.S.2d 503, 491 N.E.2d 676). Similarly, the Court of Appeals recently stated, "A posttrial motion to vacate a plea is only warranted when the error is not apparent from the record" ( People v. Angelakos, 70 N.Y.2d 670, 673, 518 N.Y.S.2d 784, 512 N.E.2d 305).

Here, the proposed vacatur of the judgment of conviction was not to be based upon any error, but solely for the purpose of circumventing the requirement of Penal Law § 70.06(2) in regard to the sentence to be imposed upon a subsequent felony conviction. Plea bargaining is not one of the specified grounds in CPL 440.10(1); nor is the interest of justice a ground for vacating the prior conviction under CPL 440.10(1), so an inquiry into the fairness and reasonableness of the plea bargain is irrelevant. It is also noteworthy that CPL 400.21 provides the procedure for determining whether a defendant is a second felony offender, and one of the purposes of that statute is to provide a more timely and convenient alternative to coram nobis with respect to a prior State conviction (People v. Di Giacomo, 96 A.D.2d 1127, 467 N.Y.S.2d 726).

Assuming that County Court has some "inherent judicial authority to embrace and address and indeed fashion, as may be necessary and appropriate in a given situation, a post-judgment remedy outside the four corners of [CPL 440.10]" (Bellacosa, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 440.10, at 319), public policy would prohibit the exercise of such authority to vacate a prior conviction solely for the purpose of accommodating a plea bargain in a subsequent felony prosecution. Granting such authority would not only permit the circumvention of the clear and unequivocal legislative mandate embodied in the predicate felony offender statutes, it would also add a new element, ripe with the potential for abuse, to the already complex process of plea bargaining. In addition, there would be constitutional implications in permitting a defendant to plea bargain away a prior felony conviction where the subsequent felony prosecution occurs in the same court as the prior conviction, but denying such a plea-bargaining tool to a defendant whose subsequent prosecution is in a different...