Opinion
9685/2013
04-02-2015
The People of the State of New York v. Adalbert Onofre, Defendant.
For the Defendant: The Legal Aid Society 111 Livingston St Brooklyn, NY 11201 By: Stephen Somerstein For the People: The Kings County District Attorney's Office 350 Jay Street Brooklyn, NY 11201 By: Sara Kurtzberg
For the Defendant:
The Legal Aid Society
111 Livingston St
Brooklyn, NY 11201
By: Stephen Somerstein
For the People:
The Kings County District Attorney's Office
350 Jay Street
Brooklyn, NY 11201
By: Sara Kurtzberg
William Miller, J.
The People move to vacate the defendant's guilty plea taken on May 27, 2014, by motion dated February 27, 2015. The defendant opposes the motion by affidavit dated March 16, 2015, and memorandum of law dated March 15, 2015. For the reasons that follow the People's motion is granted, the defendant's plea of guilty to Count Two of the Indictment charging Burglary in the Third Degree, (PL §140.20), is vacated and all counts of the indictment are reinstated.
Given the nature of the People's application, the court inquired of the defendant, and would have granted, assignment of a new attorney for the defendant. However, the defendant expressly refused and wanted to continue to have the attorney that entered the guilty plea represent the defendant in opposing the People's motion. Counsel for the defendant did not submit an affirmation of fact, but submitted an affidavit sworn to by the defendant in opposition to the People's motion.
BACKGROUND
On January 7, 2014, the defendant was arraigned on an indictment charging, inter alia, Burglary in the Second Degree. (PL §140.25[2]). At the Supreme Court arraignment, the People offered a plea bargain to a sentence of six years of incarceration and five years of Post Release Supervision on a plea of guilty to Attempted Burglary in the Second Degree as a lesser included charge under Count One of the Indictment. At each adjournment from March 3, 2014, through May 5, 2014, the People offered a plea bargain to a sentence of seven years of incarceration and five years of Post Release Supervision on a plea of guilty to Attempted Burglary in the Second Degree as a lesser included charge under Count One of the Indictment.
On May 27, 2014, there was a bench conference. The Court's handwritten notes indicate that the People reduced the offer to five years of incarceration and five years of Post Release Supervision on a plea of guilty to Attempted Burglary in the Second Degree as a lesser included charge under Count One of the Indictment. On the record, however, the People offered five years of incarceration and five years of Post Release Supervision under Count Two of the Indictment charging Burglary in the Third Degree, (PL §140.20). Although Count One of the Indictment charging Burglary in the Second Degree, (PL §140.25[2]), was not dismissed, the defendant erroneously entered a plea of guilty to Burglary in the Third Degree, (PL §140.20), under Count Two of the Indictment with a promised sentence of five years of incarceration and five years of Post Release Supervision.
On June 11, 2014, the court was informed of the error in the plea and sentence and notified the parties. On July 15, 2014, the court ordered the transcript of the plea and adjourned the matter to September 12, 2014, while the parties renewed plea negotiations in an effort to agree on a lawful plea and sentence. From November 18, 2014, to January 8, 2015, the matter was adjourned as the parties continued to negotiate a lawful plea and sentence without motion practice. Specifically, the defendant now sought a "violent felony override" so that the defendant could re-plea to Attempted Burglary in the Second Degree while retaining the benefit of the plea to the non-violent Burglary in the Third Degree. On February 23, 2015, when it was apparent that the parties could not agree on a lawful plea and sentence, the court directed the People to file a motion to vacate the plea. The People then filed the instant motion.
ARGUMENTS
The People contend that the defendant's guilty plea to Burglary in the Third Degree, (PL §140.20), is erroneous as a matter of law as the defendant cannot plead to the non-violent count where the top count is Burglary in the Second Degree, (PL §140.25[2]), a class "C" violent felony. (CPL §220.10[5][d][ii]; People v Bartley, 47 NY2d 965 [1979]). Since the defendant has not been sentenced, the proper remedy is to vacate the plea of guilty and reinstate all counts of the indictment. (People v LaTora, 128 AD2d 808 [2d Dep't], lv denied 69 NY2d 952 [1987]).
The defendant counters that the substantially bargained portion of the plea was the non-violent charge of Burglary in the Third Degree, (PL §140.20), not the sentence of five years of incarceration and five years of Post Release Supervision. The defendant proposes that the court resentence the defendant as closely to the bargained sentence as possible to a term of three and one half years to seven years of incarceration so that the defendant can be eligible for SHOCK or early release. (People v Bullard, 84 AD2d 845 [2d Dep't 1981]; People v Marty 150 AD2d 171 [1st Dep't 1989]).
THE LAW
Before sentence is imposed, trial courts in criminal cases retain the inherent authority to correct their own mistakes. (Matter of Van Leer-Greenverg v Massaro, 87 NY2d 996, 997 [1996]). If the court is apprised of the illegality of a plea prior to the commencement of sentence, it is error for the court to decline to set aside the unauthorized plea. ( People v Pena, 169 AD2d 392 [1st Dep't], lv denied 78 NY2d 957 [1991]).
A trial court is denied the authority to accept any sentence other than that prescribed by legislative fiat. (People v Bartley, 60 AD2d 283, 285 [1st Dep't], aff'd 47 NY2d 965 [1979]). If the court accepts a plea in contravention of statutory authority, the plea is deemed a nullity and both the indictment and plea of not guilty must be reinstated as to all counts of the indictment (People v Latora, 128AD2d 808 [2d Dep't], lv denied 69 NY2d 952 [1987]; People v Hicks, 79 AD2d 887 [4th Dep't 1980]). CPL §220.10(5)(d)(ii) mandates that any plea bargain when the defendant is indicted on a "B" or "C" violent felony must include no less than a class "D" violent felony.
CONCLUSION
The defendant is charged in an indictment where the top count is a class "C" violent felony, to wit: Burglary in the Second Degree, requiring that the building is a dwelling. (PL §140.25[2]). Since the time of the defendant's arraignment, the People offered a plea to attempted burglary with a sentence of incarceration initially starting at six years, then increased to seven and finally reduced to five years under the First Count of the Indictment. The Court's hand written notes on the date of plea indicate that the plea offer was to Attempted Burglary in the Second Degree with a sentence of five years of incarceration and five years of Post Release Supervision. Notwithstanding the Court's notes, the transcript of the proceeding indicates that after a bench conference the People offered, the defendant accepted, and the court allocuted the defendant, to Burglary in the Third Degree with a sentence of five years of incarceration and five years of Post Release Supervision under the Second Count of the Indictment. However, the Court's allocution included the following element:
THE COURT: You know that she lived there and it was her dwelling?
THE DEFENDANT: Yes, sir. (May 27, 2014, Transcript p. 7, lines 22-24)
After the defendant entered a plea of guilty on May 27, 2014, the Court discovered that there was an error in the plea and sentence and notified the parties on June 11 2014. It is clear that the plea should have involved the First Count of the Indictment and not to the Second Count of the Indictment, which does not have "a dwelling" as an essential element. The defendant did not immediately demand to be sentenced on the erroneous plea, but instead renewed plea negotiations in an effort to agree on a lawful plea and sentence without filing a written motion.
The renewed negotiations broke down when it became clear that the parties could not agree on whether the defendant could obtain a mandatory "violent felony override", (see 7 NYCRR 1900.4[c][1][iii]), or an indeterminate sentence of three and one half years to seven years of incarceration on a plea to Count Two of the Indictment charging Burglary in the Third Degree, (PL §140.20). Once it was clear that the renewed plea negotiations had reached an impasse, the Court directed the People to file the instant motion prior to the defendant being sentenced.
Both the defendant's plea and sentence to the Second Count of the Indictment charging Burglary in the Third Degree, (PL §140.20), are illegal. The defendant cannot be sentenced to a determinate sentence of five years of incarceration and five years of Post Release Supervision on the plea to a non-violent charge of Burglary in the Third Degree. (PL §70.06[3][d]). Moreover, the court is not even authorized to accept a plea to Burglary in the Third Degree on the instant indictment charging the defendant with Burglary in the Second Degree, (PL §140.25[2]), a class "C" violent felony. ( People v Bartley, supra). Since the Court retains the authority to correct this error in the plea and sentence prior to the defendant being sentenced, ( Matter of Van Leer-Greenverg v Massaro, supra; People v Pena, supra), the only recourse is to vacate the erroneous plea and sentence and restore both the entire indictment and the defendant's not guilty plea to each count therein. ( People v Latora, supra; People v Hicks, supra).
The cases cited by the defense are unpersuasive and not on point. (People v Bullard, supra; People v Marty, supra). In both Bullard and Marty the court was faced with an error in sentencing and not, as here, with an error in the plea authorized by law. Additionally, defendant's memorandum of law is accompanied by an affidavit of fact sworn to by the defendant and not an affirmation sworn to by counsel. There was never any agreement of SHOCK or early release prior to the entry of the erroneous plea. The defendant's position with regard to a non-violent plea is further belied by the allocution, which clearly included the elements of the violent charge of Burglary in the Second Degree. (PL §140.25[2]).
Wherefore, the People=s motion to vacate the defendant's plea of guilty to Count Two of the Indictment charging Burglary in the Third Degree, (PL §140.20), is granted and all counts of the indictment are reinstated. (People v Latora, supra; People v Hicks, supra)
The foregoing constitutes the decision, opinion and order of this court.
Dated: Brooklyn, New York
April 2, 2015
_______________________
WILLIAM MILLER, J. S.C.