The People v. Christian Williams

=================================================================

This opinion is uncorrected and subject to revision before

publication in the New York Reports.

-----------------------------------------------------------------

No. 36

The People &c.,

Appellant,

v.

Christian Williams,

Respondent.

Beth Fisch Cohen, for appellant.

Anita Aboagye-Agyeman, for respondent.

ABDUS-SALAAM, J.:

When a defendant pleads guilty to a crime, he or she

generally must move to withdraw the plea or otherwise object to

its entry prior to the imposition of sentence to preserve a

challenge to the validity of the plea for appellate review (see

People v Toxey, 86 NY2d 725, 726 [1995]; People v Claudio, 64

- 1 -

- 2 - No. 36

NY2d 858, 858-859 [1985]). In a line of cases beginning with

People v Lopez (71 NY2d 662 [1988]), however, we clarified the

existence of a narrow exception to the preservation requirement

in rare cases where the defendant lacks a reasonable opportunity

to object to a fundamental defect in the plea which is clear on

the face of the record and to which "the court's attention should

have been instantly drawn," such that "the salutary purpose of

the preservation rule is . . . not jeopardized" (id. at 666). On

this appeal, we must apply the foregoing principles to determine

whether, prior to the final imposition of his sentence, defendant

had a practical ability to challenge the validity of his guilty

plea on the theory that it was induced by the promise of an

unlawful sentence, for such an ability to object would preclude

the application of the exception to the preservation rule

delineated in Lopez and its progeny. On the record before us, we

hold that defendant had a reasonable opportunity to attack the

legality of his guilty plea in the court of first instance on the

same grounds now advanced on appeal. Because defendant did not

take advantage of that opportunity, he failed to preserve his

current claim for appellate review.

I.

After his arrest and indictment on drug sale charges,

defendant Christian Williams entered into a negotiated plea

bargain with the People. Specifically, at a scheduled court

proceeding, defense counsel announced that the People had offered

- 2 -

- 3 - No. 36

a recommended sentence of three years in prison in exchange for

defendant's guilty plea to criminal sale of a controlled

substance in the third degree (see Penal Law § 220.39 [1]). The

court asked defense counsel "[w]hat period of prosecution [sic]"

had been negotiated, and counsel answered, "It was the minimum, I

believe." When the court asked "[w]hy it would be the minimum,"

the prosecutor replied, "On my note it indicates that, for

[defendant], the post-release supervision time would be two years

post-release supervision." Relying largely on the People's

apparent belief in the appropriateness of their proposed

disposition, the court agreed to offer defendant a three-year

prison term and a two-year period of postrelease supervision in

exchange for his guilty plea.

In the course of the ensuing plea colloquy, the court

told defendant about the sentence to be imposed, saying:

"As you came into court today, you were

charged with the crime to which you pled

guilty but I hear that there is a predicate

felony statement, so you theoretically could

have received up to 12 years, is it? I lost

my sentence chart when we transferred

courtrooms so I don't know. I think it is up

to 12 years. Let's assume it is up to 12

years based on your prior criminal history.

You've been given a chance to plead guilty

and you are going to receive a three-year

sentence with two years post-release

supervision. Do you understand that?"

Defendant answered, "Yes." The court immediately asked whether

defendant "had a chance to speak with" and had, "in fact, spoken

with [defense counsel] today and on other days" about his case,

- 3 -

- 4 - No. 36

such that counsel had "explained to [defendant] various legal

rights and [his] options with regard to this case." Defendant

responded in the affirmative.

Later in the plea proceeding, the court delivered the

following warning to defendant:

"Listen carefully. Predicate felony

conviction today. If there is a third felony

conviction, in theory at least, that would be

your third felony conviction and . . . three

felony convictions in theory is a big deal

problem for anybody in your position. Do you

understand that?" (emphasis added).

Defendant indicated that he understood.

Next, the court informed defendant that, to receive a

three-year prison term, he had to meet certain conditions during

the period of his release prior to sentencing. Specifically, the

court told defendant that he had to truthfully discuss his case

with the Department of Probation, refrain from committing new

crimes and return to court for sentencing. The court further

stated:

"Pay attention. . . . If you comply with

those three conditions . . . . then you are

guaranteed the three years with the two years

post-release supervision. If you violate any

of those conditions, I'll decide what's the

nature of the violation, whether it is true

or not and if I decide that you violated one

of the conditions, I don't have to give you

the three years with the two years. I might,

but I don't have to, and I could

theoretically sentence you up to 12 years.

If you violate any of three conditions and I

decide that you did violate one of those

conditions or all of them or some of them,

you will not get your plea back, your plea

will remain and I'll do what I think is

- 4 -

- 5 - No. 36

appropriate having decided the validity of

the supposed violation."

Defendant responded that he understood this explanation of the

conditions of the plea and the consequences of failing to fulfill

them.

The court proceeded to arraign defendant on a predicate

felony statement which was filed by the People and alleged that

he had a predicate felony conviction for attempted criminal

possession of a weapon in the second degree. Defendant declined

to challenge the validity of that predicate felony conviction,

and he was adjudicated a second felony offender previously

convicted of a violent felony. The court declared, "He's a

violent predicate which will put him in the range which will make

the sentence that I promised a legal sentence." The court

ordered an adjournment of approximately two months for

fulfillment of the plea conditions and sentencing.

Significantly, though, contrary to the court's

statement, while a three-year prison term is within the lawful

sentencing range for a second felony drug offender convicted of

third-degree criminal sale of a controlled substance (see Penal

Law § 70.70 [3] [b] [i]), it was not a sentence lawfully

available to defendant in light of his distinct predicate status.

Rather, because defendant was a second felony drug offender

previously convicted of a violent felony, he faced a statutory

sentencing range of six to fifteen years in prison on his third-

degree drug sale conviction (see Penal Law § 70.70 [4] [b] [i]).

- 5 -

- 6 - No. 36

But, the court was not informed of this issue and never indicated

that it learned of the potential problem on its own.

Apparently, at some point after the plea proceeding,

defendant was arrested for marijuana and trespass offenses.

About three weeks after the entry of defendant's plea, the court

held a hearing pursuant to People v Outley (80 NY2d 702 [1993])

to determine whether defendant had violated the terms of his plea

agreement. At the hearing, a police officer testified that the

officer had arrested defendant upon seeing him smoking marijuana

in the lobby of a public housing building. In response to that

testimony, defendant presented a notarized letter from his aunt,

who alleged that she was a resident of the building at issue and

that defendant had been in her apartment at the time of the

arrest. The court provided the defense with a short recess to

enable the aunt to testify at the hearing, but at the end of the

recess, defense counsel notified the court that the defense would

rest without calling defendant's aunt to the stand. After

hearing the parties' arguments, the court found that defendant

had violated the terms of the plea by engaging in misconduct

constituting criminal possession of marihuana in the fifth degree

(see Penal Law § 221.10 [1]).

About a month later on the date of the scheduled

sentencing proceeding, the parties appeared in court and

discussed the People's written submissions in support of

enhancing defendant's sentence. Defense counsel informed the

- 6 -

- 7 - No. 36

court that he had not reviewed those submissions. The court

said, "[O]bviously the sentence is going to be enhanced. I

announced that the last time." Nonetheless, the court adjourned

the case so that the court and counsel could have more time to

review the People's arguments.

Two weeks later, the parties appeared before the court

for sentencing. Early in the proceeding, the court reiterated

that defendant had violated the terms of his plea deal, and the

court noted that, based on the People's written submissions, it

appeared that defendant had tried to arrange for the presentation

of false evidence of an alibi in connection with his post-plea

marijuana offense. After the prosecutor's argument in favor of

an enhanced sentence, the court told defendant and defense

counsel that they could "say anything [they] want[ed] on the

issue of the appropriate sentence within the range that the law

allows, and the circumstances --." Counsel interrupted and

commenced his argument in opposition to the enhancement of

defendant's sentence, positing that the evidence at the Outley

hearing had not revealed misconduct that warranted an enhanced

sentence. Defendant declined to make any statement about the

proposed sentence enhancement, and after a brief exchange between

counsel and the prosecutor, the parties brought their arguments

to a close.

The court again summarized the conditions of the plea

and reiterated its prior finding that defendant had failed to

- 7 -

- 8 - No. 36

abide by those conditions when he committed the marijuana

offense. Noting that it was discussing an "enhanced sentence,"

the court condemned defendant's efforts to present a false alibi

to cover up his violation of the plea conditions. The court

stated, "So he's sentenced to 6 years [in prison], which is an

appropriate enhancement in view of all of the things that went on

related to this case," adding that defendant would also serve a

two-year term of post-release supervision. Counsel asked the

court to "note [his] exception" without elaborating on the

grounds for the objection, and the court so noted it. The court

then repeated its pronouncement of the sentence and concluded the

proceeding. Subsequently, defendant appealed.

A divided panel of the Appellate Division reversed the

judgment, on the law, vacated defendant's guilty plea and

remanded the matter to Supreme Court for further proceedings (see

People v Williams, 123 AD3d 240, 241-247 [1st Dept 2014]). The

court concluded that defendant's claim fell within the exception

to the preservation rule because Supreme Court's alleged error in

promising defendant an unlawful three-year prison term in

exchange for his guilty plea constituted a due process violation

which presented a question of law for appellate review despite

the absence of proper preservation (see id. at 244, citing People

v Louree, 8 NY3d 541, 545-546 [2007]). On the merits, the court

ruled that the lower court's error affected the voluntariness of

defendant's plea, not simply his sentencing expectations, and

- 8 -

- 9 - No. 36

that therefore vacatur of the plea was the only proper remedy

(see id. at 245-247).

Two Justices dissented and voted to affirm (see id. at

247-250 [Tom, J.P., dissenting]). In the dissent's view,

defendant had to, and failed to, preserve his challenge to the

legality of his guilty plea because the exception to the

preservation rule does not apply where, as here, a defendant's

claim implicates only his or her sentencing expectations and not

the voluntariness of the plea itself (see id. at 247-248). The

dissent further opined that defendant's claim lacked merit

because the court's imposition of a lawful six-year prison term

within the range of punishments promised in the event that

defendant violated the terms of the plea agreement met his

legitimate sentencing expectations, notwithstanding that the

court's promise of a three-year prison term based on his

potential compliance with those terms would have resulted in an

illegal sentence for the offense to which he pleaded guilty (see

id. at 248-250). One of the Appellate Division dissenters

granted the People leave to appeal, and we now reverse on

preservation grounds.

II.

"Preservation--or, more precisely, the lack of

preservation--frequently accounts for the disposition of criminal

cases in this Court" (People v Hawkins, 11 NY3d 484, 491 [2008]),

and we enforce the preservation doctrine with equal regularity in

- 9 -

- 10 - No. 36

the trial and plea contexts, remaining mindful that the necessity

of preservation is the rule rather than the exception (see e.g.

People v Leach, __NY3d__, 2016 NY Slip Op 01253, *1-*2 [2016];

People v Crowder, 24 NY3d 1134, 1136-1137 [2015]; People v

Clemons, 49 NY2d 795, 796 [1980]; People v Pascale, 48 NY2d 997,

997-998 [1980]; People v Warren, 47 NY2d 740, 741 [1979]; People

v Delancy, 48 NY2d 972, 973-974 [1979]; People v Adams, 46 NY2d

1047, 1047-1048 [1979]). Thus, we have held that, generally, "in

order to preserve a challenge to the factual sufficiency of a

plea allocution there must have been a motion to withdraw the

plea under CPL 220.60 (3)" (Lopez, 71 NY2d at 665; see Claudio,

64 NY2d at 858-859). And, "[u]nder certain circumstances, this

preservation requirement extends to challenges to the

voluntariness of a guilty plea" (People v Peque, 22 NY3d 168, 182

[2013]; see People v Tyrell, 22 NY3d 359, 363-364 [2013]; People

v Murray, 15 NY3d 725, 726 [2010]; People v Toxey, 86 NY2d 725,

726 [1995]; Delancy, 48 NY2d at 973-974). On the other hand, in

People v Lopez (71 NY2d 662), we concluded that, where a pleading

defendant's recitation of the facts of his or her offense clearly

casts doubt on his or her guilt and the court makes no further

inquiry, the defendant does not have to preserve a claim of fatal

error in the allocution because, as noted above, "the court's

attention should have been instantly drawn to the problem, and

the salutary purpose of the preservation rule is arguably not

jeopardized" (id. at 666). In People v Louree (8 NY3d 541

- 10 -

- 11 - No. 36

[2007]), we adopted a variant of the Lopez exception applicable

to the defendant's claim that his plea was involuntary under

People v Catu (4 NY3d 242 [2005]) based on the particular

circumstances of the defendant's plea and sentencing proceedings

(see Louree, 8 NY3d at 546).

The Appellate Division in the instant case relied

principally on Louree for its determination that defendant did

not need to preserve his claim. In doing so, that court viewed

Louree as holding that a defendant never has to preserve a claim

that the court violated due process by accepting a guilty plea

without informing the defendant of the direct consequences of the

plea (see Williams, 123 AD3d at 244 ["While such a challenge (to

a plea) must ordinarily be preserved by a motion to withdraw the

plea under CPL 220.60 (3), this does not apply where the trial

court failed to fulfill its obligations to ensure that a plea

conformed with due process"], citing Louree, 8 NY3d at 545-546;

see also id. at 242 ["First, defendant's constitutional claim

that his plea violated due process because it was induced by an

illegal promise need not be preserved"]). But, the Appellate

Division misapprehended our decisions in Louree and subsequent

cases, which clearly do not categorically exempt due process

claims from the preservation rule in the plea context.

In that regard, in Louree, we excused defendant's

failure to preserve his Catu claim not because the claim

implicated due process, but because the defendant had no

- 11 -

- 12 - No. 36

practical ability to assert that the plea was invalid prior to

the imposition of sentence. Specifically, while we stated that,

"where a trial judge does not fulfill the obligation to advise a

defendant of postrelease supervision during the plea allocution,

the defendant may challenge the plea as not knowing, voluntary

and intelligent on direct appeal, notwithstanding the absence of

a postallocution motion," we explained that we were applying an

exception to the preservation rule because we could not "shut our

eyes to the actual or practical unavailability of either a motion

to withdraw the plea" or a CPL 440.10 motion, noting that "a

defendant can hardly be expected to move to withdraw his plea on

a ground of which he has no knowledge" (id. at 546). We further

observed that, "if the trial judge informs the defendant of

postrelease supervision during the course of sentencing, as also

happened here, a defendant may no longer move to withdraw the

plea since a motion may only be made under CPL 220.60 (3) '[a]t

any time before the imposition of sentence'" (id.). Hence, our

decision to relieve the defendant of any preservation obligation

in Louree stemmed in significant part from the defendant's

inability to object to the legality of his plea prior to the

final imposition of sentence, and not just from the nature of his

due process claim. As a result, Louree does not support the

Appellate Division's apparent conclusion that, because defendant

here attacked the voluntariness of his plea on due process

grounds, his claim was categorically exempt from the preservation

- 12 -

- 13 - No. 36

rule.

Importantly, after Louree was handed down and prior to

the Appellate Division's decision here, we dispelled any notion

that Louree establishes such a broad exception to the

preservation rule. So it was that, in People v Peque (22 NY3d at

168), we reiterated the general rule that, even where the

defendant challenges a plea on voluntariness and due process

grounds, he or she must preserve that challenge via timely

objection depending on the circumstances of the case, and we

clarified that, "[t]aken together, Lopez and Louree establish

that where a defendant has no practical ability to object to an

error in a plea allocution which is clear from the face of the

record, preservation is not required" (id. at 182). In that very

decision, we also concluded that a defendant could have

preserved, and failed to preserve, his contention that the trial

court's failure to apprise him that deportation was a potential

consequence of his plea rendered the plea involuntary (see id. at

183).

Thus, as Louree indicates and Peque crystallizes, if a

defect in a plea allocution is clear on the face of the record

and implicates due process, the defendant nonetheless must

preserve his or her claim that the defect made the plea

involuntary unless the defendant has no practical ability to do

so. Moreover, after the Appellate Division decided this case, we

again emphasized that a defendant must object to the court's

- 13 -

- 14 - No. 36

failure to apprise him or her of the consequences of a guilty

plea if he or she has the opportunity to lodge such an objection

(see People v Crowder, 24 NY3d 1134, 1136-1137 [2014]; see also

People v Conceicao, 26 NY3d 375, 381 [2015] ["If a defendant has

an opportunity to seek relief from the sentencing court, he must

preserve his challenge to the plea"]).

It is no wonder, then, that even defendant does not

embrace the Appellate Division's rationale for dispensing with

the preservation requirement here, but merely argues that he is

entitled to the benefit of the exception to the preservation rule

based on the absence of a chance to raise his claim below. In

that regard, defendant contends that Supreme Court violated due

process and improperly induced his guilty plea because it failed

to tell him at the plea proceeding that it could not legally

order a three-year prison term, which the court promised him in

exchange for his guilty plea and his compliance with the plea

conditions, upon defendant's conviction for third-degree drug

sale in light of defendant's status as a second felony drug

offender with a prior violent felony conviction. By defendant's

reckoning, since the court never announced that the promised

sentence was illegal and his lawyer did not display any

recognition of the unlawfulness of the proposed sentence on the

record, neither defendant nor counsel had any practical ability

to challenge the voluntariness of the plea on grounds of which

they were unaware.

- 14 -

- 15 - No. 36

However, even assuming that the error alleged by

defendant impacts the voluntariness of the plea as opposed to his

sentencing expectations -- an issue hotly contested by the

parties and unaddressed by our decision today -- defendant could

have raised his current claim prior to the final imposition of

sentence in Supreme Court, and therefore, he was obligated to,

and failed to, preserve his claim.1

As our previous summary of the record shows, and

contrary to the assertions of our dissenting colleagues (see

dissenting op. at 12-13), the defense had multiple opportunities

to preserve defendant's current challenge to his plea and seek

clarification of the matter, as such opportunities arose from,

inter alia: the court's comment at the plea proceeding about its

uncertainty of the legality of the promised sentencing options;

the court's statements at the plea proceeding about the

determinative nature of defendant's predicate felony offender

status; the numerous adjournments, the Outley hearing and the

post-hearing court appearance that transpired between the plea

and sentencing proceedings, which could have allowed counsel and

defendant to inquire further into the legality of the promised

sentencing options and defendant's understanding of the plea; and

1

Notably, if, as the People maintain, defendant's claim

raises an issue pertaining to his sentencing expectations and not

the voluntariness of his plea, it is undisputed that such a claim

would have to be preserved to at least the same extent as a

challenge that genuinely relates to the voluntariness of the

plea.

- 15 -

- 16 - No. 36

the court's comments at sentencing, which offered an opening for

counsel to confirm the legality of the court's sentencing options

and its effect on the validity of the plea. By failing to seize

upon these opportunities to object or seek additional pertinent

information, defense counsel failed to preserve defendant's claim

for appellate review (see generally Conceicao, 26 NY3d at 381;

Crowder, 24 NY3d at 1136-1137; see People v Murray, 15 NY3d 725,

727 [2010] [where a practical ability to object to the validity

of the plea arose at the sentencing proceeding, defendant's

failure to object or move to withdraw the plea rendered his claim

unpreserved]; cf. Conceicao, 26 NY3d at 383-384 [observing that,

although defendants did not have to preserve claims for plea

vacatur due to lack of information and circumstances supplying a

practical ability to object, adjournments in the proceedings and

further presentence litigation strengthened attorneys' and

defendants' comprehension of the consequences of the pleas]).2

2

Our dissenting colleagues contend that "[i]t is

particularly unjust to require preservation in a case such as the

one before us, where the error escaped discovery of all those

involved and trained in the law--the judge, prosecutor and

defense counsel" (dissenting op. at 10-11). This comment appears

to be a mere rephrasing of the dissent's argument that defendant

lacked a practical opportunity to raise his current claim before

the court of first instance. We simply disagree because the

record discloses several instances where, in light of the court's

comments and the course of the proceedings, the defense could

have made an objection based on, or sought clarification of, the

legality of a three-year prison term upon his conviction. If the

dissent means to suggest that defendant did not have to preserve

his claim, regardless of any opportunity to do so, because the

record does not affirmatively reveal that he and his attorney had

- 16 -

- 17 - No. 36

Similarly, to the extent defendant suggests that the

court also improperly made him a firm promise of a three-year

prison term even if he committed a new crime, he could just as

easily have preserved that claim as well. At the court

appearance following the Outley hearing, the court announced its

intention to enhance the sentence beyond the promised three-year

prison term based on defendant's commission of a new marijuana

offense. Later, at sentencing, the court again referenced its

plan to increase the sentence, and prior to the end of the

proceeding, it proposed to increase the sentence to a six-year

prison term. In response, defendant and his attorney could have

objected to the court's plan to dishonor the purported promise of

a three-year prison term in connection with defendant's violation

of the plea conditions if such a promise, or the legal viability

actual knowledge that the court committed an alleged error, such

an assertion is untenable. Although we have excused the failure

to use the objection method of preservation to preserve a claim

of a fundamental defect in a plea based in part on the lack of an

opportunity for the defendant to have discovered the error, we

have never held, either in the plea context or elsewhere, that

the defendant's lack of actual knowledge that an error has

occurred, despite an opportunity to learn of the error, may

excuse the defendant from having to preserve his or her claim via

objection. Indeed, such a theory would swallow the preservation

doctrine whole, thereby eviscerating an essential limit on our

jurisdiction (see People v Turriago, 90 NY2d 77, 80 [1997];

People v Kelly, 5 NY3d 116, 119 [2005]), because virtually every

defendant could rely on a record silent on the subject of the

defendant's actual knowledge to argue that he or she did not in

fact comprehend the erroneous nature of the court's actions and

therefore had no obligation to object. We reject this sweeping

knowledge-based exception to the preservation rule.

- 17 -

- 18 - No. 36

of it, had motivated defendant to plead guilty. Since the

defense did not inquire into the legality of a three-year prison

term in the event of a violation of the plea terms or demand that

the court honor the alleged promise, defendant failed to preserve

any complaint about the court's enhancement of the sentence and

advisements regarding what would occur in the event of a

violation.

Finally, given defendant's failure to preserve his

present claim that his plea must be vacated, we express no

opinion on the merits of the claim, and we remit the case to the

Appellate Division, which may decide whether to review

defendant's unpreserved challenge to the validity of his plea as

a matter of discretion in the interest of justice. As a result,

just as our decision on procedural grounds should not be read to

suggest that defendant would have been entitled to vacatur of his

plea had he preserved his current claim, it also should not be

taken as an endorsement of Supreme Court's handling of the

proceedings below, which all parties agree was far from ideal

irrespective of the ultimate validity of the plea.3

3

Notably, the Legislature is aware that illegal sentences

may sometimes be imposed and has created a mechanism to address

this problem. That mechanism, CPL 440.40, authorizes the court,

upon the People's motion, to vacate an illegal sentence within

one year of imposition. Had defendant received the illegal

sentence that was to his benefit on his third-degree drug sale

conviction, the People would have had only one year to move to

vacate the illegal sentence (see Campbell v Pesce, 60 NY2d 165,

168-69 [1983]).

- 18 -

- 19 - No. 36

III.

Because defendant, via counsel, could have raised his

current challenge to the propriety of his guilty plea prior to

the imposition of sentence, he was obligated to preserve his

claim, and his failure to object to the plea in the court of

first instance precludes our review of his present contention.

Accordingly, the order of the Appellate Division should be

reversed and the case remitted to that court for consideration of

the facts and issues raised but not determined on the appeal to

that court.

- 19 -

People of the State of New York v Christian Williams

No. 36

RIVERA, J.(dissenting):

On this appeal, we are presented with a bargained-for

plea based on an illegal minimum incarceratory sentence, offered

as an inducement for defendant's waiver of his constitutionally

protected right to liberty and the guarantees afforded by his

right to trial. In violation of defendant's due process rights,

the judge at the plea hearing failed to ensure the defendant

understood the direct sentencing consequences of the plea, and

wrongly informed defendant that the offer was a legal minimum

rather than one precluded by law. Thus, since defendant's plea

was not knowing, voluntary and intelligent, the plea must be

vacated. No less important to my determination that this plea

cannot stand is the indisputable fact that the judicial practice

employed in defendant's case jeopardizes the public confidence in

plea bargaining and the criminal justice system as a whole.

Unlike the majority, I conclude that we are not

procedurally foreclosed from addressing the merits of defendant's

claims on direct appeal. Quite simply, the usual rules of

preservation do not govern our review because this is far from

the usual case. According to the record, the judge represented

- 1 -

- 2 - No. 36

to defendant that under the law, in exchange for pleading guilty,

he could receive a sentence of three years incarceration,

followed by two years of postrelease supervision. The judge

failed to independently confirm whether the sentence promise was

in fact legal, and instead deferred that determination to "the

learned folks in the prosecution's office." However, the judge's

reliance on the work of others was misplaced because the

information available to the court at the plea established that

the only lawful minimum incarceratory time applicable to

defendant was six years--a fact the judge failed to discuss with

defendant before he entered his plea. Six years imprisonment is

coincidentally also the sentence imposed by the judge after he

determined that defendant's sentence should be enhanced for

violation of a plea condition, namely defendant's possession of

marijuana in the lobby of a residential building, conduct for

which defendant was never criminally charged.

I.

Under our laws, the judge is responsible for accepting

a plea after ensuring its validity, and the judge is the sole

person authorized to impose a sentence. It is the "trial court

[which] has the constitutional duty to ensure that a defendant,

before pleading guilty, has a full understanding of what the plea

connotes and its consequences" (People v Louree, 8 NY3d 541, 544

[2007], quoting People v Ford, 86 NY2d 397, 402-402 [1995]).

- 2 -

- 3 - No. 36

Thus, the trial judge must ensure "that the

record...[is] clear that the plea represents a voluntary and

intelligent choice among the alternative courses of action open

to the defendant" (People v Belliard, 20 NY3d 381, 385 [2013]

[internal quotations and citations omitted]). In addition, the

"sentence is primarily a judicial responsibility" and so the

"judge may not ignore those provisions of law designed to assure

that an appropriate sentence is imposed" (People v Selikoff, 35

NY2d 227, 238, 240-241 [1974], cert denied 35 NY2d 227 [1975];

see also CPL 380.20 ["The court must pronounce sentence in every

case where a conviction is entered"]; Garner v New York State

Dept. of Correctional Services, 10 NY3d 358, 362 [2008],

superceded by statute People ex rel. Joseph II. v Supt. of

Southport Correctional Facility, 15 NY3d 126 [2010] ["the

sentencing judge—and only the sentencing judge—is authorized to

pronounce the PRS component of a defendant's sentence"]).

When a plea fails to comply with the due process

requirement that the plea represent a "voluntary, knowing and

intelligent choice among alternative courses of action" (People v

Catu, 4 NY3d 242, 245 [2005], quoting Ford, 86 NY2d at 403), the

plea must be vacated (People v Hill, 9 NY3d 189, 193 [2007];

Catu, 4 NY3d at 244). Where, as here, the plea is based on an

illegal minimum period of incarceration, the plea is defective at

its inception, because defendant cannot have made a knowing,

voluntary and intelligent decision to plead when he did not have

- 3 -

- 4 - No. 36

knowledge that his bargained-for sentence was half the legal

minimum (see Catu, 4 NY3d at 245 [failure of the court to advise

defendant of postrelease supervision required reversal of the

conviction]). Moreover, the requirements of due process refer

not to illusory plea offers, but to plea offers that can in fact,

and under law, be fulfilled (see Selikoff, 35 NY2d at 241).

"Thus, any sentence 'promise' at the time of plea is, as a matter

of law and strong public policy, conditioned upon its being

lawful and appropriate...." (id. at 238). Therefore, a court

must also ensure that a defendant's bargained-for-benefit is a

lawful promise. When a court fails to do so, and treats as

wholly valid a plea that is constitutionally defective, a

defendant may seek to be relieved from the plea bargain by

vacating the plea (People v Cameron, 83 NY2d 838, 839 [1994]).

Furthermore, both the United States Supreme Court and

this Court have determined that "a guilty plea induced by an

unfulfilled promise either must be vacated or the promise

honored" (Selikoff, 35 NY2d at 241, citing Santobello v New York,

404 US 257, 260 [1971]). In the case of an illegal sentencing

promise, the judge's only option is to vacate the plea because

specific performance of the agreed upon minimum prison term is

unavailable. However, the judge here failed to follow any lawful

course to remedy the due process violation inherent in the plea,

and instead imposed a sentence that was double the minimum

offered to defendant. Defendant's plea must therefore be

- 4 -

- 5 - No. 36

vacated.

The People contend that defendant's plea was knowing

and voluntary because defendant understood that if he breached

the plea conditions imposed by the court he faced a maximum

sentence of 12 years' imprisonment, and the court met defendant's

legitimate sentencing expectations by imposing a six-year prison

term. The sentence imposed is irrelevant to the matter at hand

because "the defect lies in the plea itself and not in the

resulting sentence" (Hill, 9 NY3d at 191), as a consequence "the

court[] violated defendant's due process rights--not the

defendant's sentencing expectations" (id. at 193).

In any event, the People's argument is based on their

misreading of the plea proceeding record. As that record

establishes, the judge never retreated from three years as the

baseline for defendant's minimum sentence, and on several

occasions expressly measured defendant's sentence against that

three-year floor. For example, in describing the beneficial

sentence defendant would receive in exchange for his guilty plea,

the judge told defendant that under the high end of the

sentencing spectrum he could have imposed up to 12 years

imprisonment--which as it turned out was incorrect1--and reminded

defendant that "[y]ou've been given a chance to plead guilty and

you are going to receive a three-year sentence with two years

1

The correct sentence was a determinate term between 6 and

15 years, followed by a term of post-release supervision between

1½ and 3 years (see Penal Law § 70.70[4][b][i]).

- 5 -

- 6 - No. 36

post-release supervision." When discussing the plea conditions,

the judge said that if defendant complied he was "guaranteed the

three years with the two years post-release supervision," and if

he did not comply, he was still eligible to receive the three-

year term. Thus, the judge continued to hold out three years as

the minimum from which any sentence would be determined. Of

course, the judge could not sentence defendant to a legal term of

three years, and thus even under the People's analysis,

defendant's reliance on that minimum rendered his plea

involuntary.

The People further argue that a sentencing court has

the inherent power to correct an illegal sentence (People v

Williams, 87 NY2d 1014, 1015 [1996]). True enough, but a court

could not have corrected the sentence to coincide with the plea

offer. Put another way, defendant could not be legally sentenced

to three years' imprisonment for the crime to which he pled

guilty.

Nevertheless, the People contend that under People v

Collier if the original promise could not be imposed, the

sentencing court could impose another lawful sentence as long as

it "comports with defendant's legitimate expectations" (22 NY3d

429, 434 [2013]). According to the People, under that principle,

because defendant received the legal statutory minimum of six

years, the ultimate sentence imposed fulfilled his expectations

of a "minimum" sentence. The People apparently ignore that the

- 6 -

- 7 - No. 36

original sentencing offer was a minimum of three years, not six,

and that three years was the number of consequence to defendant.

As this Court has recognized "the overwhelming consideration for

the defendant is whether [he or she] will be imprisoned and for

how long" (People v Gravino, 14 NY3d 546, 559 [2010]).

The People's further claim that if defendant had

complied with the plea conditions he could have received a three-

year sentence by repleading to a lesser offense. Yet for

defendant to plead down, the original plea must be vacated--

exactly the relief the People oppose and which defendant seeks on

this appeal.2

To the extent the People argue that defendant could be

subjected to a legal sentence greater than the three years'

imprisonment he was promised, we have never held that a court may

impose a sentence that exceeds the minimum period expressly

offered as an inducement for a guilty plea, and our case law

supports the opposite conclusion.3 Cases where a sentencing

2

It is worth noting that defendant was sentenced in January

of 2012. If he had replead at that point to the originally

agreed on three-year sentence, his sentence would already be

complete.

3

The Court's holding in People v DeValle (94 NY2d 870

[2000]), is not to the contrary. In that case, the Court held

that the trial court had inherent power to correct an illegal

sentence where defendant did not seek withdrawal of the plea, and

also failed to establish detrimental reliance on the illegal

sentence that could not be addressed by returning him to his

pre-plea status, if he so desired. Here, defendant seeks the

remedy the Court in DeValle recognized as appropriately available

to the defendant on the facts of that case. Thus, unlike the

- 7 -

- 8 - No. 36

court "fixed" an illegal sentence through imposition of a lawful

sentence are distinguishable because none of them dealt with an

increase in the minimum amount of time defendant could expect.

In Collier, defendant, as part of his plea bargain, pled guilty

to two counts of robbery and received a sentence of 25 years in

prison on the first count, and five years on the other count --

to run either consecutively or concurrently based on the judge's

discretion (22 NY3d at 431). The judge imposed the sentences

consecutively and defendant appealed, arguing both that the

sentence was excessive and that the five-year sentence was

illegal (id. at 432). The Appellate Division agreed that the

five-year sentence was illegal, vacated the sentence, and

remitted the matter for resentencing (id.). Defendant was

resentenced to concurrent terms of 25 years and 10 years (id.).

Defendant appealed, arguing that his plea had to be vacated

because his expectation when pleading guilty on the first plea

had been five years (id.). However, our Court upheld defendant's

sentence of 25 years because it fit within defendant's original

expectation of a sentence from 25 years to 30 years' imprisonment

(id. at 433-434).

In Williams, this Court rejected a defendant's

challenge to a resentence that imposed an enhanced maximum period

defendant in DeValle who, in essence, demanded specific

performance of an illegal sentence, defendant here seeks no more

than what the law allows, namely to be returned to his pre-plea

status.

- 8 -

- 9 - No. 36

of incarceration directly within the period expressly explained

to defendant at the time of the plea (id.). As the facts of that

case establish, defendant was originally sentenced to an illegal

indeterminate prison term of 3 1/2 to 7 years, and thereafter

resentenced to a lawful term of 3 1/2 to 10 1/2 years'

imprisonment. The Court concluded that defendant did not have a

legitimate expectation of finality in the prior illegal sentence

because the judge had informed defendant in advance that he was

pleading to a crime that, by law, allowed the judge "to impose a

sentence of up to 15 years" (id.). As relevant to the instant

appeal, the defendant's minimum of 3 1/2 years imprisonment went

unchanged from the illegal sentence to the resentence. Thus,

this Court properly focused on the defendant's maximum sentencing

exposure.

Similarly, the Court held in People v Murray that a

judge does not "arbitrarily trifle[] with the legitimate

expectations of [a] defendant based on the plea" when the

defendant is told that the plea is conditional, and advised of

the sentence to be imposed should defendant violate the court's

terms (15 NY3d 725, 726 [2010]). In Murray, the judge informed

the defendant that he would "probably" receive youthful offender

status and a ninth-month sentence if he complied with certain

plea conditions set by the court. Otherwise, the court would

sentence the defendant as an adult (id.). When the defendant

failed to comply, the court imposed an adult sentence, which this

- 9 -

- 10 - No. 36

Court upheld on appeal as "rooted in the terms of defendant's

plea and evident to all concerned" (id.). The court in Murray

had expressly stated that the consequence of a violation of the

plea condition was imposition of a sentence wholly unlike the

sentence available to a youthful offender. In contrast, the

judge in defendant's case always indicated that the sentence was

based on a three-year minimum imprisonment term.

The decisions in Collier, Williams and Murray

presuppose that a defendant who pleads guilty while fully aware

of the period of incarceration attached to the plea is making a

choice to bargain away freedom for at least the minimum, and up

to the maximum, as described by the court. In accordance with

this guiding principle, defendant's plea must be vacated because

it was based on a three-year illegal minimum sentence, which the

court communicated as the lowest end of the applicable sentencing

range.

II.

When a judge fails "to ensure that defendant

understands the nature of the charge and that the plea is

intelligently entered," as a matter of due process and

fundamental fairness, it is unreasonable to demand preservation

by objection. It is particularly unjust to require preservation

in a case such as the one before us, where the error escaped

discovery of all those involved and trained in the law--the

- 10 -

- 11 - No. 36

judge, prosecutor and defense counsel.

Moreover, the preservation rule imposed by the majority

is not unqualifiedly required by our case law under the

circumstances presented in this appeal. Preservation serves

important purposes. It allows a claim to be brought to the trial

court's attention in order to "provide the opportunity for cure

before a verdict is reached and a cure is no longer possible,"

"advance[] the truth-seeking purpose of the trial" and ensure

"the goal of swift and final determinations of the guilt or

nonguilt of a defendant" (People v Gray, 86 NY2d 10, 20-21

[1995]). However, we have recognized that rules of preservation

must give way under circumstances where "the salutary purpose of

the preservation rule is arguably not jeopardized" (People v

Lopez, 71 NY2d 662, 666 [1988]). Exceptions to preservation are

narrow, but not so restrictive as to be meaningless.

Thus, the Court recognized in Lopez that preservation

is not required in the "rare case" where the voluntariness of the

plea is called into question by a defendant's factual recitation

negating an essential element of the crime, and the court fails

to adequately undertake its duty-bound inquiry to ensure the

defendant understands the charge and plea (see id.). In such a

case "the court's attention should have been instantly drawn to

the problem" (id.). In Louree, the Court employed a pragmatic

approach to preservation, and reviewed on direct appeal a Catu

violation, because the Court recognized "the actual or practical

- 11 -

- 12 - No. 36

unavailability" of a motion to challenge a plea which cannot be

"knowing, voluntary and intelligent if a defendant is ignorant of

a direct consequence because of a deficiently conducted

allocution" (Louree, 8 NY3d at 545-546).

Defendant's case for direct appellate review to our

Court, notwithstanding the lack of a postallocution motion, is at

least as, if not more, compelling as these cases. For example,

in Lopez, the Court made clear that preservation is not required

when a judge fails, in accordance with a judge's constitutional

duty, to make an additional inquiry once the voluntariness of the

plea is placed in question during the allocution (71 NY2d at

666). In defendant's case the illegality of the sentence offer

was similarly evident from the record. Yet, the judge proceeded

to inform defendant that the offer was a legal minimum term of

incarceration, without first having confirmed the statutory

sentencing range. Thus, the judge failed to take appropriate

steps to ensure that defendant understood the nature of the

sentencing offer.

As for the exception recognized in Louree, here

defendant had no genuine reasonable opportunity to present the

judge with a counter view of the inherently defective plea offer.

In Louree, the lack of opportunity was due to the timing of the

error. The trial judge did not mention postrelease supervision

at the allocation, depriving the defendant of information

necessary to determine whether to move to withdraw his plea.

- 12 -

- 13 - No. 36

Nevertheless, this Court did not require that defendant

investigate whether the judge's description of the sentence was

correct. When the trial judge informed the defendant at

sentencing about postrelease supervision, it was too late because

a motion to withdraw a plea may only be made under CPL 220.60 (3)

before the imposition of sentence (Louree, 8 NY3d at 546).

Here, once the judge stated at the plea hearing that

the minimum was lawful, defendant relied on that statement and

had no reason for further inquiry into the legality of the plea

offer. Like the defendant in Louree, defendant Williams based

his decision to plead guilty on the judge's error, and should be

viewed as similarly lacking the opportunity to move to withdraw.

Moreover, application of the preservation requirement here

presupposes defendant's prior awareness of the very error that

the judge was required to present to the defendant (see People v

Peque, 22 NY3d 168, 216 [2013][Lippman C.J., dissenting] ["A

preservation requirement presumes knowledge that would make the

advisement unnecessary—a classic catch 22"]). However, "if the

prosecutor, defense counsel and the court all suffered from the

same misunderstanding" about the plea offer, "it would be

unreasonable to conclude that defendant understood it" (People v

Worden, 22 NY3d 982, 985 [2013]).4

4

The Majority is incorrect in its assertion that allowing

defendant to bring a direct claim would "swallow the preservation

doctrine whole" (majority op. at 16 fn 2). Here, defendant

should be absolved from the normal preservation rules, not solely

- 13 -

- 14 - No. 36

The circumstances of this case further illustrate the

inapplicability of preservation to defendant's claim. The nature

of postallocution motion practice presumes that a defense

attorney has a reason to question the validity of the plea

process and the offer. This makes sense in the context of a plea

allocution, which involves a defendant's responses to questions

from the judge, intended to identify a defendant's lack of

understanding and volition, and where defense counsel, acting on

behalf of the defendant, has reason to ensure the allocution

meets constitutional requirements (see People v Tyrell, 22 NY3d

359, 366 [2013] [plea was defective where "the records do not

affirmatively demonstrate" that defendant understood the waiver

and "there is a complete absence of discussion" by the court,

defense counsel or defendant of the pertinent constitutional

rights]; Lopez, 71 NY2d at 667 [trial court conducted a proper

inquiry into defendant's allocation to ensure the factual

sufficiency of defendants factual recitation]; People v Harris,

61 NY2d 9, 17 [1983] ["a record that is silent will not overcome

the presumption against waiver"]). However, in the case before

us, defense counsel negotiated the plea with the prosecutor and

because he lacked actual knowledge of the error, as the Majority

asserts, but because he relied on an assertion of the trial judge

that the plea offer was based on a legal minimum sentence. When

a court's statement creates the perception that no further

investigation of a sentence is needed, defendant cannot be held

responsible for relying on that statement.

- 14 -

- 15 - No. 36

the court accepted the offer as lawful. As a consequence

defendant had no reason to question the legality of its terms.

Application of the preservation rule to these facts

absolves the court of its constitutional duty to ensure that

defendant is informed of the direct consequences of his plea, and

limits defendant's remedial options. The majority states the

defendant can request the Appellate Division exercise its

interest of justice authority to grant him relief, (majority op.

at 18) but there are no assurances that the court will be

disposed in defendant's favor. Here, two justices dissented,

finding the plea comports with constitutional requirements.

Alternatively, the majority states defendant can proceed with an

ineffective assistance of counsel claim. However, as with a Catu

violation, the error here is apparent on the record and therefore

an article 440 motion is improper (see CPL 440.10 [2] [b], [c];

People v Cooks, 67 NY2d 100, 104 [1986] ["When...sufficient facts

appear on the record to permit the question to be reviewed,

sufficiency of the plea allocution can be reviewed only by direct

appeal. Only in the unusual situation that sufficient facts with

respect to the issue do not appear on the record is a CPL 440.10

motion to vacate available as a means of review"]). All the

while, defendant has served more than the three year minimum he

was promised.

It seems apparent that the salutary purpose of the

preservation rule is not furthered by refusing to consider

- 15 -

- 16 - No. 36

defendant's claim on direct review to this Court (Lopez, 71 NY2d

at 666). Therefore, defendant should be permitted to pursue his

challenge to the validity of the plea by direct appeal to us.

III.

Defendant's case is yet another reminder that our

criminal justice system depends on the proper administration of

plea bargains (Santobello, 404 US at 262 ["'plea bargaining,' is

an essential component of the administration of justice. Properly

administered, it is to be encouraged"]). As the United States

Supreme Court has recognized, "ours is for the most part a system

of pleas, not a system of trials" (Missouri v Frye, 132 SCt 1399,

1407 [2012] [internal quotations and citations omitted]). "In

today's criminal justice system...the negotiation of a plea

bargain, rather than the unfolding of a trial, is almost always

the critical point for a defendant" (id. at 1407). "[P]lea

negotiation serves the ends of justice" (Selikoff, 35 NY2d at

233). More specifically, the final product of negotiation, the

bargained-for promise, ensures the "prompt and largely final

disposition of most criminal cases"; avoids the "corrosive impact

of enforced idleness during pre-trial confinement for those who

are denied release pending trial"; "protects the public from

those accused persons who are prone to continue criminal conduct

even while on pretrial release"; and "by shortening the time

between charge and disposition, it enhances whatever may be the

- 16 -

- 17 - No. 36

rehabilitative prospects of the guilty when they are ultimately

imprisoned" (Santobello, 404 US at 261).

The legitimacy of our "bargain-for-sentence" criminal

process is based on the assurance that where promises are made to

induce a defendant's guilty plea, they are capable of being

enforced (see id. at 262 ["when a plea rests in any significant

degree on a promise or agreement of the prosecutor, so that it

can be said to be part of the inducement or consideration, such

promise must be fulfilled"]). Without such assurances defendants

would be loathe to engage in a risky high-stakes negotiation

involving trading personal liberty interests in exchange for no

benefit at all. Thus, a criminal justice system that tolerates

unenforceable bargains increases the potential "detrimental

effect on the criminal justice system that will result should it

come to be believed that the State can renege on its plea

bargains with impunity notwithstanding defendant's performance"

(People v Danny G., 61 NY2d 169, 176 [1984], quoting People v

McConnell, 49 NY2d 340, 349 [1980]). Similarly, because illegal

sentencing promises can bear no assurance of enforcement, they

undermine public confidence in plea bargains, and discourage

defendants from entering these agreements. It is therefore

crucial that "the court in overseeing and supervising the

delicate balancing of public and private interests in the process

of plea bargaining" (Selikoff, 35 NY2d at 243), conduct its

constitutional duty to ensure the lawfulness of promises leading

- 17 -

- 18 - No. 36

to a defendant's incarceration. The judge here failed to fulfill

his duty, and the sole remedy for the defect presented on this

record is to vacate the plea.

* * * * * * * * * * * * * * * * *

Order reversed and case remitted to the Appellate Division, First

Department, for consideration of the facts and issues raised but

not determined on the appeal to that court. Opinion by Judge

Abdus-Salaam. Chief Judge DiFiore and Judges Pigott, Stein and

Garcia concur. Judge Rivera dissents and votes to affirm in an

opinion in which Judge Fahey concurs.

Decided April 5, 2016

- 18 -