People v. Rowland

• Decision Date: 20 July 2006
• Docket Number: 16628.,16060.
• Citation: 2006 NY Slip Op 05847,818 N.Y.S.2d 668,31 A.D.3d 978
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN N. ROWLAND, Appellant.
• Court: New York Supreme Court — Appellate Division

31 A.D.3d 978

818 N.Y.S.2d 668

2006 NY Slip Op 05847

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN N. ROWLAND, Appellant.

16060.

16628.

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 20, 2006.

Appeals (1) from a judgment of the County Court of Saratoga County (Scarano, Jr., J.), rendered August 10, 2004, convicting defendant upon his plea of guilty of the crimes of criminally negligent homicide and criminal possession of a weapon in the third degree, and (2) by permission, from an order of said court, entered January 11, 2006, which denied

defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Peters, J.

Following several days of a jury trial in connection with a nine-count indictment issued upon defendant's shooting of a person which resulted in the victim's death, defendant entered an Alford plea to criminally negligent homicide and criminal possession of a weapon in the third degree. Pursuant to the plea agreement, defendant was sentenced to two consecutive prison terms of 2 to 4 years. They were set to run concurrently with two previously imposed sentences, 1 to 3 years for a violation of probation and 2 to 4 years for criminal possession of stolen property in the fourth degree. Subsequently, we reversed the stolen property conviction and remitted that matter for a new trial (14 AD3d 886 [2005]). Defendant pleaded guilty to a reduced charge and was sentenced to a term of incarceration of one year which he had already served. Defendant thereafter moved pursuant to CPL 440.10 to vacate his convictions of criminally negligent homicide and criminal possession of a weapon in the third degree. County Court denied said motion, prompting these appeals.

Defendant contends that, in accordance with established case law, when a plea of guilty is induced by a promise that the sentence will run concurrent to a previously imposed sentence which is later reversed or vacated, the plea must be vacated because it was based upon a sentencing promise which can no longer be fulfilled (see People v Pichardo, 1 NY3d 126 [2003]; People v Puckett, 270 AD2d 364 [2000]; People v Panetta, 250 AD2d 710 [1998], lv denied 92 NY2d 903 [1998]; People v Boyle, 164 AD2d 938 [1990]). We are not persuaded that this rule is applicable under these circumstances because defendant's plea was not "inextricably intertwined" with his previous convictions (People v Schaaff, 77 AD2d 607, 608 [1980]; cf. People v Panetta, supra at 712).

Defendant's previous convictions were neither charged nor resolved contemporaneously with the challenged plea (compare People v Panetta, supra at 712; People v Schaaff, supra at 607-608). Additionally, the promise of concurrent sentences did not amount to an understanding that, by virtue of the plea, defendant would avoid additional prison time (cf. People v Pichardo, supra at 129; People v Fuggazzatto, 62 NY2d 862, 863 [1984]). To the contrary, the agreed-upon aggregate sentence was longer than the aggregate term of the two prior sentences and one of those prior sentences still remains. Moreover, the record indicates that defendant's decision to enter the...