People v. Louree

• Decision Date: 05 June 2007
• Docket Number: 18.
• Citation: 869 N.E.2d 18,8 N.Y.3d 541
• Parties: The PEOPLE of the State of New York, Respondent, v. Cornell LOUREE, Appellant.
• Court: New York Court of Appeals Court of Appeals

869 N.E.2d 18

8 N.Y.3d 541

The PEOPLE of the State of New York, Respondent, v. Cornell LOUREE, Appellant.

18.

Court of Appeals of New York.

June 5, 2007.

Appellate Advocates, New York City (Lynn W.L. Fahey of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Solomon Neubort and Leonard Joblove of counsel), for respondent.

OPINION OF THE COURT

READ, J.

Defendant Cornell Louree was indicted for criminal possession of a weapon in the third degree (Penal Law § 265.02), and criminal possession of a weapon in the fourth degree (Penal Law § 265.01). On September 18, 2003, he pleaded guilty to attempted criminal possession of a weapon in the third degree in exchange for a one-year prison sentence, or two years if a prior conviction in Connecticut qualified as a predicate felony in New York.

Because defendant requested an unusually long adjournment before sentencing, the trial judge also required him to plead guilty to criminal possession of a weapon in the third degree with the understanding that he could later withdraw this plea and the count would be dismissed so long as he appeared in court for his scheduled sentencing on December 4, 2003, was not arrested in the meantime, and cooperated fully with the Probation Department in preparation of the presentence report. The judge informed him that

"[i]n the event you fail to fully comply with any or all of these conditions, I am not bound to impose the negotiated sentence, you will not be permitted to withdraw your guilty plea, and I am authorized by law to impose a higher sentence of up to seven years in jail. You understand that?"

Defendant answered "Yes." The judge did not mention that a period of postrelease supervision would follow either the conditionally promised two-year or a potential seven-year sentence.

As it turned out, defendant did not fulfill any of the prerequisites for the more lenient sentence: he skipped his scheduled sentencing, he was arrested for robbery, and he did not cooperate in the preparation of his presentence report. In addition, the Connecticut conviction qualified as a felony. When defendant returned to court on December 22, 2003, his counsel moved to be relieved because defendant "wish[ed] to withdraw his plea and based on what he told me, I believe there will be a conflict." The court denied the motion. Defendant did, in fact, eventually move to withdraw his plea, his counsel explaining that

"when he took the plea what [defendant] is telling me is that he was in his mind one hundred percent certain that he did not have a prior felony conviction in the State of Connecticut. That it, in fact, was a misdemeanor and if he had known that it was, in fact, a felony he would not have taken this plea."

The trial judge denied the application.

After discussion of other topics not relevant to this appeal, a plea for leniency by defense counsel, and a short statement from defendant, the trial judge reviewed what had happened at the September hearing and afterwards, and the proceeding ended as follows:

"THE COURT: . . . Pursuant to the plea agreement, I'm not going to—pursuant to your breach of the plea agreement, I'm not going to sentence you on the E felony. On motion of the People, move to withdraw his plea and dismiss the E felony?

"[DISTRICT ATTORNEY]: That's correct.

"THE COURT: That would be done. Criminal Possession of a Weapon in the Third Degree. Therefore, it is the judgment of this Court that you are sentenced to a period—sentenced to seven years incarceration on the D violent felony offense followed by five years postrelease supervision. $200 surcharge imposed. $10 Crime Victims Assistance fee and $50 DNA registration fee imposed. Government will draw your blood.

"You've previously pled guilty—waived your right to appeal.

"These proceedings are completed. Officers take charge.

"THE DEFENDANT: I can't appeal?

"THE COURT: You got seven. Take charge."

The Appellate Division affirmed the judgment of conviction and sentence, concluding briefly that

"defendant's contention that his plea was not knowingly, intelligently, and voluntarily entered because he was not informed that he would be subject to a mandatory period of post-release supervision is unpreserved for appellate review since he did not move either to withdraw his plea or vacate the judgment of conviction on that basis" (28 A.D.3d 680, 813 N.Y.S.2d 219 [2d Dept. 2006]).

The court also declined to review the issue in the exercise of its interest-of-justice jurisdiction, and expressed the view that our decision in People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 (2005) did not require a different result. A Judge of this Court subsequently granted defendant leave to appeal, and we now reverse.

"A 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] [emphasis added]). "The court is not required to engage in any particular litany when allocuting the defendant, but due process requires that the record must be clear that the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant" (id. at 403, 633 N.Y.S.2d 270, 657 N.E.2d 265 [internal quotation marks and citations omitted]). To fulfill this constitutional imperative, the trial judge must advise a defendant of the direct consequences of a plea and the resulting waiver of rights.

In Catu, we held that "[p]ostrelease supervision is a direct consequence of a criminal conviction" (4 N.Y.3d at 244, 792 N.Y.S.2d 887, 825 N.E.2d 1081). Since a defendant contemplating a guilty plea "must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction" (id. at 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081). Necessarily, then, a plea cannot be knowing, voluntary and intelligent if a defendant is ignorant of a direct consequence because of a deficiently conducted allocution. As a result, a defendant does not have to show that he would have declined to plead guilty if he had been correctly informed by the court (id.), and it is irrelevant that the prison sentence added to postrelease supervision is within the range of prison time promised at the allocution (People v. Van Deusen, 7 N.Y.3d 744, 745-746, 819 N.Y.S.2d 854, 853 N.E.2d 223 [2006]).

Here, the People argue that defendant did not preserve the issue for appellate review, principally relying on People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988). In Lopez, we observed that ordinarily "in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under CPL 220.60(3) or a motion to vacate the judgment of conviction under CPL 440.10," because ...