People v. McAlpin

960 N.E.2d 435, 17 N.Y.3d 936, 936 N.Y.S.2d 666, 2011 NY Slip Op 8456

• Court: New York Court of Appeals
• Decided: November 22, 2011
• Docket: 213
• Status: Published

Opinions

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant pleaded guilty to robbery in the second degree with the understanding that he would be adjudicated a youthful offender and receive a term of probation if he satisfied specified conditions. At the plea proceeding, Supreme Court further advised defendant that, if he violated the terms of the youthful offender agreement, the sentencing agreement would be vacated and the court could impose a prison sentence of at least 3x/2 years, with a potential maximum sentence of 15 years. Defendant violated several terms of the youthful offender agreement and, at the subsequent sentencing proceeding, the court imposed a determinate prison sentence of 3x/2 years plus five years of postrelease supervision.

On appeal, defendant contended that reversal was required under People v Catu (4 NY3d 242 [2005]) because, in describing the alternate sentence that defendant might receive if he violated the conditions imposed for obtaining youthful offender status, the court failed to reference the potential imposition of postrelease supervision. The Appellate Division reversed defendant’s conviction and vacated his plea in a divided decision (68 AD3d 431 [2009]) and one of the dissenting Justices granted defendant leave to appeal to this Court.

Having elected to advise defendant of the consequences that might flow from the violation of the youthful offender agreement, the court referenced only a prison term, omitting any mention of the possibility of postrelease supervision, thereby giving defendant an inaccurate impression concerning the court’s sentencing options. Accordingly, we conclude that reversal and vacatur of the plea was appropriate.

Although the dissent concludes in reliance on People v Murray (15 NY3d 725 [2010]) that defendant is foreclosed from obtaining relief because he failed to object at sentencing when the court first referenced postrelease supervision, we find this case to be distinguishable. In Murray, defendant had been told at the plea proceeding that two years of postrelease supervision would be imposed but was informed at the commencement of sentencing that the court would instead impose a sentence of three years. Because defendant had ample opportunity to object after the initial statement was made and before sentence was formally imposed, we concluded that his failure to preserve the issue in the sentencing court precluded our review. Here, in contrast, the court first mentioned postrelease supervision only moments before imposing the sentence.

We are also unconvinced that the court’s brief remark at sentencing to the effect that it had previously advised defendant that he would receive a sentence of 3½ years and five years’ postrelease supervision if he violated the agreement, which defense counsel acknowledged, conclusively established that the court had advised defendant of the potential postrelease supervision sentence prior to accepting the plea. There is no indication in the record that the court or either counsel had reviewed the plea transcript or had focused specifically on whether, during the plea proceeding, the court had discussed the possibility of postrelease supervision — a potential sentence that was not part of the original agreement.