People v. Johnson, 6007

• Decision Date: 17 April 2018
• Docket Number: 6008,SCI 5874/14,6007
• Citation: 160 A.D.3d 516,76 N.Y.S.3d 18
• Parties: The PEOPLE of the State of New York, SCI Respondent, v. Yasmine JOHNSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 516

76 N.Y.S.3d 18

The PEOPLE of the State of New York, SCI Respondent,

v.Yasmine JOHNSON, Defendant–Appellant.

6007

6008

SCI 5874/14

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

ENTERED: APRIL 17, 2018

Robert S. Dean, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), for respondent.

Manzanet–Daniels, J.P., Tom, Mazzarelli, Webber, Kern, JJ.

Judgment, Supreme Court, New York County (Larry R.C. Stephen, J.), rendered July 8, 2015, as amended July 9 and July 31, 2015, convicting defendant, upon her plea of guilty, of robbery in the first degree, and sentencing her, as a juvenile offender, to a term of one to three years, unanimously reversed, on the law, to the extent of vacating defendant's plea of guilty, dismissing the superior court information and reinstating the indictment.

On January 30, 2015, defendant, age 15, appeared in court with her attorney.¹ The record indicates that at the time, defendant had two previous minor interactions with the criminal justice system (one for disorderly conduct, and the other for theft of services, resulting in an adjournment in contemplation of dismissal). After consultation with her attorney and her mother, and discussions with the court, defendant, through her attorney, entered a plea of guilty, under a superior court information, to robbery in the first degree. Specifically, defendant admitted that on or about November 9, 2014, at approximately 8:24 p.m., near the corner of East 28th Street and Park Avenue South in New York County, defendant, acting in concert with three other girls, approached the complaining witness; one of the girls had a knife which defendant then possessed and "brandished" toward the complaining witness; a physical altercation ensued during which defendant and her accomplices stole the complaining witness's jacket and shoes.

The court stated to defendant that if she abided by certain conditions for one year, she would be adjudicated a youthful offender and sentenced to a conditional discharge. The court explained that the plea agreement required defendant to: complete the Fortune Society program, including abiding by all of the conditions set forth, passing any drug tests administered by the program; not smoke marijuana; attend the charter school that defendant's mother had found for her; obey a curfew that would require defendant to be home by 9:00 p.m. every night; not "hang out" or "run the streets"; and not be rearrested "even for a small crime such as jumping over the turnstile, or a petit larceny or possessing small amounts of drugs, including marijuana." Defendant acknowledged her understanding of these conditions and requirements.

The court further advised defendant that if she did not fulfill all of the conditions, she "could get up to five to 25 years State prison." Defendant indicated her understanding of the plea agreement. As defendant was 15 yrs of age, and therefore a juvenile offender, her maximum exposure was actually 3 1/3 to 10 years in a juvenile facility.

Despite being given numerous chances, defendant failed to fulfill all the conditions. On July 5, 2015, defendant appeared for sentencing. At that time she moved, in writing, to withdraw her guilty plea on the ground that the court had "mistakenly communicated to the defendant that if she failed to complete the court-mandated program, and abide by other conditions, enumerated by the court, she faced a sentence of 5–25 years incarceration," even though she actually "faced a sentence of 3 1/3–10 years as a juvenile offender." Defendant argued that she "was under the mistaken impression that if convicted after trial she faced a much more severe sentence than, in fact, she actually faced," and that she was therefore "induced to plead guilty by mistake." The matter was adjourned to July 8, 2015. On July 8, 2015, at defendant's sentencing hearing, counsel again argued that defendant should be entitled to withdraw her plea since she had pleaded guilty, in part, based on the court's mistaken representation of the sentence she faced.

The court denied defendant's motion² . The court stated that this was not a situation where a defendant faced more jail time as a result of the court's possible factual mistake. It reasoned that as it was willing to sentence defendant as a juvenile offender, she would necessarily receive less jail time than under the plea agreement, and therefore she would not experience any prejudice. The court proceeded to sentence defendant as a juvenile offender, to 1 1/3 to 3 years incarceration. Defendant was not adjudicated a youthful offender.³

Defendant argues that her plea must be vacated as involuntary, unknowing and unintelligent because it was based on the court's incorrect statements regarding her sentencing exposure and the parties' mutual misunderstanding as to the sentencing range. We agree.

It is well settled that in determining whether a plea is voluntarily, knowingly and intelligently made, courts look to the totality of the circumstances ( People v. Acevedo, 14 N.Y.3d 113, 118, 897 N.Y.S.2d 674, 924 N.E.2d 782 [2010] ). Whether a plea is knowing, intelligent and voluntary is dependent upon a number of factors "including the nature...