People v. Monk

• Decision Date: 30 April 2013
• Citation: 21 N.Y.3d 27,989 N.E.2d 1,2013 N.Y. Slip Op. 03022,966 N.Y.S.2d 739
• Parties: The PEOPLE of the State of New York, Respondent, v. Terrance MONK, Appellant.
• Court: New York Court of Appeals Court of Appeals

21 N.Y.3d 27
989 N.E.2d 1
966 N.Y.S.2d 739
2013 N.Y. Slip Op. 03022

The PEOPLE of the State of New York, Respondent,
v.
Terrance MONK, Appellant.

Court of Appeals of New York.

April 30, 2013.

[966 N.Y.S.2d 739]Scott B. Tulman & Associates, PLLC, New York City (Scott B. Tulman of counsel), for appellant.

Janet DiFiore, District Attorney, White Plains (Laurie Sapakoff, Steven Bender and Richard Longworth Hecht of counsel), for respondent.

[21 N.Y.3d 29]OPINION OF THE COURT
READ, J.

By indictment filed in Westchester County on June 17, 2004, defendant Terrance Monk was charged with first-degree robbery (Penal Law § 160.15[3] [the robber “(u)ses or threatens the immediate use of a dangerous instrument”] ), second-degree robbery (two counts) (Penal Law § 160.10), and second- and third-degree assault (Penal Law §§ 120.05, 120.00, respectively) in connection with an attack on a woman whom defendant and at least one accomplice were alleged to have followed into the driveway of her residence in Westchester County in the late evening hours of March 21, 2004. As the victim recounted what happened, defendant smashed the passenger side window of her car with a Belgian block thrown with such force that she suffered a broken rib and a bruised right arm; reached through the shattered glass and punched her in the back; and threatened to kill her if she did not get out of the car and go into her home, and to cut

[989 N.E.2d 2]

966 N.Y.S.2d 740]off her finger with a knife that he wielded if she refused to give him her ring. Defendant was accused of stealing the victim's purse, cell phone, car keys, and ring before fleeing with an accomplice, leaving her cowering inside her car.

During plea negotiations, the assistant district attorney, at defense counsel's behest, approached her counterparts in Rockland County to seek agreement that the 10–year sentence then under discussion would run concurrently with whatever sentence was imposed on defendant to resolve charges pending against him for thefts in Rockland County, to which he [21 N.Y.3d 30]anticipated soon pleading guilty. At a hearing on April 15, 2005, the assistant district attorney informed County Court that after “several phone calls to try and accommodate the defendant and his attorney on that,” she had secured the Rockland County district attorney's commitment not to oppose concurrent sentencing. Defendant then agreed to plead guilty to attempted first-degree robbery (Penal Law §§ 110.00, 160.15[3] ), a class C violent felony, in full satisfaction of the indictment in Westchester County.

The judge put the sentence promise on the record before accepting defendant's plea, advising him that the “[s]entence promise is a ten-year determina[te] sentence[,] concurrent with the sentence you're going to receive in Rockland County[,] with a mandatory five-year post-release supervision period.” During the plea allocution, defendant acknowledged that on April 24, 1997, he had pleaded guilty to second-degree burglary (Penal Law § 140.25), a class C violent felony, for which he was sentenced to an indeterminate term of 3 to 6 years in prison, and, as a result, would be sentenced as a second violent felony offender; and that his guilty plea stood on its own, independent of any other conviction, including the disposition of the Rockland County case.

At a court appearance on May 10, 2005, defense counsel (who was, in fact, defendant's second attorney, The Legal Aid Society having previously successfully asked to be relieved), sought to be excused from representing defendant on the ground of irreconcilable differences. Additionally, she informed the judge that defendant, although not then speaking to her, had earlier “communicated a desire ... to withdraw his plea.” County Court granted the attorney's application, and subsequently appointed new defense counsel.

By motion dated June 24, 2005, defendant, through his new attorney, moved to withdraw his guilty plea, alleging multiple grounds for doing so. As relevant to this appeal, he claimed that the sentence promise was deficient because the judge “did not explain to [him] at the time of the plea that a violation of the post release supervision could result in his being incarcerated for up to five additional years of imprisonment, over and above the ten years promised by the Court.”

In a decision and order dated August 17, 2005, County Court denied the motion. The judge noted that defendant “was informed that he was subject to a period of [five] years of post [21 N.Y.3d 31]release supervision.” Further, because the “consequences of ... violation of post release supervision are collateral to a defendant's plea,” he was not required to describe them. At the sentencing proceeding that same day, defendant, who refused to answer the judge's questions regarding his 1997 conviction, was adjudicated a second violent felony offender. County Court then sentenced him as agreed to, absent the “benefit of a promised concurrent sentence” since there was no plea agreement in Rockland County

[989 N.E.2d 3

966 N.Y.S.2d 741]^*

In an opinion and order dated March 15, 2011, the Appellate Division affirmed (83 A.D.3d 35, 920 N.Y.S.2d 97 [2d Dept.2011] ). The court commented that while neither this Court nor the Second Department had “yet addressed whether the consequences of violating the conditions of postrelease supervision must be expressly disclosed to defendants during in-court allocutions and before the judicial acceptance of guilty pleas,” the First and Third Departments had weighed in on the issue in cases where the claim was unpreserved, and “both Courts concluded [that] the consequences of violating the conditions of postrelease supervision are merely collateral, and that a court's failure to allocute as to those consequences does not render pleas unknowing, involuntary, or unintelligent” ( id. at 38, 920 N.Y.S.2d 97, citing People v. Laster, 38 A.D.3d 242, 243, 832 N.Y.S.2d 151 [1st Dept.2007], lv.

denied,9 N.Y.3d 846, 840 N.Y.S.2d 773, 872 N.E.2d 886 [2007] [declining to review the defendant's unpreserved claim that the court misinformed him as to the precise consequences of a violation of a condition of postrelease supervision, but noting that “(w)ere we to review this claim, we would reject it”]; People v. Behlin, 33 A.D.3d 390, 390, 821 N.Y.S.2d 757 [1st Dept.2006], lv. denied,8 N.Y.3d 843, 830 N.Y.S.2d 702, 862 N.E.2d 794 [2007] [“reincarceration for violating the terms of postrelease supervision is a collateral consequence of the plea”]; People v. Muriqi, 9 A.D.3d 743, 744, 779 N.Y.S.2d 862 [3d Dept.2004], lv. denied,3 N.Y.3d 679, 784 N.Y.S.2d 17, 817 N.E.2d 835 [2004] [“County Court was not required to inform defendant of the consequences of not complying with the conditions of postrelease supervision, which conditions are set by the Board of Parole, as those were collateral consequences of his plea” (citation omitted) ] ).

[21 N.Y.3d 32]The Second Department then agreed with the First and Third Departments that

“while a trial court must advise a defendant of the postrelease...