Opinion
INDICTMENT NO. 2690/11
11-06-2013
THE PEOPLE OF THE STATE OF NEW YORK, v. JAMES MCLAIN, Defendant.
Present:
Hon. Elizabeth A. Foley
DECISION
AND ORDER
Defendant McLain moves, pro se, "to set aside and or vacate [his] sentence pursuant to CPL 440.10", claiming that "based on his conviction, the defendant was a juvenile offender, [and] defendant should be sentenced according to juvenile statutes." After a review of the moving papers, the People's opposition, the pertinent Supreme Court file and relevant statutory and caselaw authority, defendant McLain's motion is decided in accordance herewith.
Neither the plea nor sentencing minutes have been submitted in connection with the application at bar.
Defendant McLain was charged under the instant Indictment with, inter alia, Robbery in the Second and Third Degrees, for his alleged participation, along with a codefendant, in the forcible stealing of a wallet from an individual on April 1, 2011, when defendant McLain, born April 27, 1994, was sixteen years old. On March 26, 2012, as part of a negotiated plea bargain agreement, defendant McLain (hereinafter "defendant") pleaded guilty before this Court to Robbery in the Third Degree under Indictment Count 2 and Disorderly Conduct, in exchange for the promise that if defendant successfully completed an alternative to incarceration program administered by the Center for Alternative Sentencing and Employment Services ("CASES"), without getting into any further trouble or being rearrested, then the Court would vacate defendant's felony robbery conviction and sentence defendant to a conditional discharge upon his plea of guilty to Disorderly Conduct, a violation, which was added to the Indictment for purposes of disposition. Defendant was warned that any violation of the terms of this agreement would result in the imposition of a definite term of one year in jail for his third degree robbery conviction, in accordance with his plea bargain. Defendant was not promised youthful offender treatment as part of the plea negotiations, nor was this Court asked to consider defendant's eligibility for youthful offender treatment. Notwithstanding the Court's unequivocal warning, defendant was subsequently arrested for his alleged commission of another robbery and was charged with various felony offenses under Indictment No. 4532/12. Defendant was discharged from the CASES program effective June 1, 2012, and on September 12, 2012, the Court sentenced defendant to one year in jail under Count 2 of Indictment No. 2690/11 in accordance with his negotiated plea agreement. The Court notes defendant filed the instant pro se application less than two months after sentence was imposed.
For the sake of clarity, it should be noted defendant does not fall within the statutory definition of "juvenile offender." See, CPL 1.20(42); PL 10.00(18).
In his moving papers, defendant does not claim his plea was involuntarily or unintelligently made, nor does defendant allege that the Court was asked to consider affording youthful offender status to defendant at the time of his plea or sentence, or that any other promises were made with respect to sentencing. Upon the record before the Court, defendant, with the aid of counsel, negotiated a plea bargain and knowingly and intelligently pleaded guilty to Robbery in the Third Degree (PL §160.05) as a "D" felony in exchange for a promised definite term of imprisonment of one year which was imposed due to defendant's re-arrest, Indictment and consequent discharge from the CASES program, in accordance with the terms of his plea agreement. In addition, it has not been disputed that by his plea, defendant's attorney secured a plea bargain that was extremely advantageous to defendant, and that defendant thereby shielded himself from the possibility of receiving a longer term of imprisonment upon a conviction of the same charge to which he pleaded guilty or of the other more serious felony charge in the Indictment, following a jury trial. Moreover, there is no evidence defendant was unable to comprehend the plea proceedings, that the terms of the plea agreement were not understood by defendant or his attorney, or that his plea was baseless, and there is no indication defendant, with counsel, was not ready to be sentenced in strict accordance with the specific terms of his plea agreement. Thus, it would seem defendant should not now be heard to complain.
Nevertheless, as the Court of Appeals recently pronounced in People v. Rudolph, 21 NY3d 497 (2013):
CPL 720.20(1) says that, where a defendant is eligible to be treated as a youthful offender, the sentencing court "must" determine whether he or she is to be so treated. We hold that compliance with this statutory command cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request. In so holding, we overrule People v. McGowen, (42 N.Y.2d 905 [1977]) [which held, in pertinent part, a defendant waives the right to adjudication of youthful offender status by failing to assert such right at time of sentence].Accord, People v. Pacheco, __ AD3d __, 2013 WL 5630022 (2nd Dept.); People v. Tyler, __ AD3d __, 2013 WL 5451759 (2nd Dept.). Moreover, a general waiver of the right to appeal -- as was executed by defendant here on March 26, 2012 -- does not preclude a defendant's claim on appeal that a sentencing court did not consider youthful offender treatment. People v. Pacheco, supra.
Here, it would appear defendant is an "eligible youth" as defined by CPL §720.10. Mindful that "mere eligibility for youthful offender status does not mandate youthful offender treatment," and that such a determination lies within the sound discretion of the sentencing court (People v. Colon, 267 AD2d 319 [2nd Dept. 1999], lv denied, 94 NY2d 946 [2000]; People v. Rudolph, supra), the Court therefore grants defendant's pro se motion to vacate the sentence imposed on September 12, 2012 and for a hearing on the issue of whether or not defendant should be afforded youthful offender treatment and for further proceedings in accordance with People v. Rudolph, supra.
The Court recognizes the cases cited as authority for the relief ordered herein were each the result of a direct appeal, not brought within the procedural context of a CPL Article 440 motion. The Court is also cognizant of the further pronouncement by the Court of Appeals in the Rudolph case "that there is no reason why the overruling of McGowen should have any application to cases where the appellate process has been completed ... [and] that its impact will be limited to cases still on direct review." However, the timing of defendant's pro se post-judgment motion to vacate his sentence (see, CPL §440.20), coming so soon after sentence had been imposed and arguably within the time frame he could have taken a direct appeal, in conjunction with the clear mandate of new appellate precedent which reinterprets a statutory command and effects significant change in its application, albeit not one which is retroactive, compels this Court to conclude that entertaining defendant's request is just and proper.
Accordingly, it is hereby
ORDERED, that defendant's motion to vacate his sentence imposed on September 12, 2012 and for a youthful offender status hearing is granted.
ENTER
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ELIZABETH A. FOLEY, J.S.C.