People v. Lagas

• Decision Date: 15 July 2010
• Citation: 76 A.D.3d 384,906 N.Y.S.2d 151
• Parties: The PEOPLE of the State of New York, Respondent, v. David W. LAGAS, also known as Beaver, Appellant.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 151 76 A.D.3d 384 The PEOPLE of the State of New York, Respondent, v. David W. LAGAS, also known as Beaver, Appellant. Supreme Court, Appellate Division, Third Department, New York. July 15, 2010.

David W. Lagas, Elmira, appellant pro se.

Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.

Before: CARDONA, P.J., ROSE, STEIN, McCARTHY and GARRY, JJ.

McCARTHY, J.

Appeal from a judgment of the County Court of Columbia County (Czajka, J.), rendered February 4, 2009, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree, petit larceny, criminal mischief in the fourth degree (two counts) and burglary in the third degree.

In satisfaction of a five-count indictment, defendant pleaded guilty to burglary in the second degree, petit larceny, criminal mischief in the fourth degree (two counts) and burglary in the third degree. Prior to doing so, defendant executed a detailed written plea agreement setting forth a recommended concurrent prison term of 10 years plus five years of postrelease supervision. The agreement, which also recited the maximum prison term that defendant could receive under each count of the indictment, acknowledged that the recommended sentence was precisely that-a recommendation, i.e., County Court had not made any promises and was free to deviate from the term discussed. The agreement further reflected that defendant waived his right to appeal-except to the extent that defendant could appeal his sentence if the prison term imposed exceeded the recommendation. Defendant thereafter pleaded guilty and was sentenced as a second felony offender to an aggregate prison term of 9 1/2 years followed by five years of postrelease supervision. Defendant now appeals, contending that County Court's failure to advise him that the sentence imposed would run consecutively to his prior undischarged prison term rendered his plea involuntary.

Preliminarily, defendant does not dispute, and the record reflects, that he knowingly, intelligently and voluntarily executed a written waiver of the right to appeal ( see People v. Pump, 67 A.D.3d 1041, 889 N.Y.S.2d 105 [2009], lv. denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010]; People v. Meacham, 63 A.D.3d 1371, 880 N.Y.S.2d 576 [2009], lv. denied 13 N.Y.3d 798, 887 N.Y.S.2d 547, 916 N.E.2d 442 [2009] ). Although defendant's primary contention-that the failure to apprise him of the consecutive sentencing provisions of Penal Law § 70.25(2-a) rendered his plea involuntary-survives his waiver of the right to appeal ( see generally People v. Volfson, 69 A.D.3d 1123, 1124, 893 N.Y.S.2d 376 [2010]; People v. Scitz, 67 A.D.3d 1251, 889 N.Y.S.2d 306 [2009] ), the People assert that defendant's failure to move to withdraw his plea or vacate the judgment of conviction renders this issue unpreserved for our review ( see generally People v. Dixon, 62 A.D.3d 1214, 1214, 879 N.Y.S.2d 631 [2009], lv. denied13 N.Y.3d 743, 886 N.Y.S.2d 97, 914 N.E.2d 1015 [2009]; People v. Nunez, 56 A.D.3d 897, 898, 867 N.Y.S.2d 267 [2008], lv. denied 11 N.Y.3d 928, 874 N.Y.S.2d 13, 902 N.E.2d 447 [2009] ). Defendant, relying upon this Court's prior decision in People v. George, 59 A.D.3d 858, 873 N.Y.S.2d 387 [2009] and the line of cases cited therein, argues that no postallocution motion was required to preservethis claim. For the reasons that follow, we conclude that the People are correct and, therefore, defendant's argument on this point is not properly before us.

In George, we held that because the defendant was not apprised prior to sentencing that his negotiated sentences would run consecutively to his prior undischarged prison term, his challenge to the voluntariness of his plea was not precluded by his failure to raise that issue in a postallocution motion ( see id. at 859, 873 N.Y.S.2d 387). That conclusion was grounded upon a line of cases wherein the defendant had not been advised prior to pleading guilty that he would be subject to a period of postrelease supervision ( see People v. Louree, 8 N.Y.3d 541, 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007]; People v. Tausinger, 55 A.D.3d 956, 865 N.Y.S.2d 383 [2008]; People v. Rivera, 51 A.D.3d 1267, 858 N.Y.S.2d 825 [2008] ). As a defendant cannot be expected to move to withdraw a plea upon a ground that he or she did not know existed at the time of the allocution, no postallocution motion was required to preserve such claim for appellate review ( see People v. Louree, 8 N.Y.3d at 545-546, 838 N.Y.S.2d 18, 869 N.E.2d 18; People v. Tausinger, 55 A.D.3d at 957, 865 N.Y.S.2d 383; People v. Rivera, 51 A.D.3d at 1269, 858 N.Y.S.2d 825). Although George would appear, at first blush, to be dispositive of the matter now before us, we are constrained to conclude, in light of the Court of Appeals' decision in People ex rel. Gill v. Greene, 12 N.Y.3d 1, 875 N.Y.S.2d 826, 903 N.E.2d 1146 [2009], cert. denied sub nom. Gill v. Rock, --- U.S. ----, 130 S.Ct. 86, 175 L.Ed.2d 59 [2009], that George no longer is good law and should not be followed-either on the merits or as to the preservation requirement.¹

The Court in Gill made a clear distinction between the consecutive sentencing provisions of Penal Law § 70.25(2-a) and the failure to impose a period of postrelease supervision, branding any attempt to draw an analogy between the two as "flawed" ( People ex rel. Gill v. Greene, 12 N.Y.3d at 5, 875 N.Y.S.2d 826, 903 N.E.2d 1146). Specifically, the Court held that the failure to impose a required period of postrelease supervision was fundamentally different than imposing a period of imprisonment and simply neglecting to characterize that term as consecutive or concurrent ( id. at 6, 875 N.Y.S.2d 826, 903 N.E.2d 1146). In the former situation, a portion of the overall sentence-the additional period of postrelease supervision-was not...