The People v. Adam Crowder , 24 N.Y.3d 1134 ( 2015 )

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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 11
The People &c.,
Respondent,
v.
Adam Crowder,
Appellant.
Lee Kindlon, for appellant.
Gerald A. Dwyer, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
On December 22, 2010, defendant was indicted in County
Court on charges of burglary in the second degree (Penal Law §
140.25 [2]) and criminal mischief in the third degree (Penal Law
§ 145.05 [2]). On April 18, 2011, before a combined evidentiary
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hearing, County Court set forth a proposed plea bargain on the
record. Defendant was informed that the minimum the People could
offer was "a D violent felony and the minimum on that is two
years in state prison with one and a half to three years [PRS] or
parole." The court advised defendant that he could accept the
plea bargain that day, but also offered defendant some time to
think it over. Defendant indicated that he wanted more time.
Three days later, defendant returned to court. At the
very outset of the proceeding, defendant informed the court that
he "want[ed] to take the plea." The court then reiterated the
prison term defendant faced, but this time failed to mention the
PRS component. The court accepted defendant's request to attend
a drug rehabilitation program before the imposition of his
sentence, on the condition that defendant continue under the
supervision of probation and submit to drug testing. Defendant
was also warned that his sentence would be enhanced if he failed
to comply with the court's conditions prior to sentencing.
Defendant pleaded guilty and executed a written waiver of his
right to appeal.
On May 17, 2011, the probation department informed the
court that defendant had failed to cooperate with them, or
undertake the required drug testing. Defendant's father had also
been unable to locate defendant, who, he believed, had relapsed.
Defendant failed to appear at his sentencing on July 15. The
court granted a two-week adjournment for defense counsel to
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attempt to locate him. Defense counsel was unable to do so, and
defendant failed to appear again on the rescheduled sentence date
of July 28. On that date, the court sentenced defendant, in
absentia, to an enhanced five year determinate sentence of
imprisonment, to be followed by three years PRS. Defense counsel
did not object to the imposition of the PRS component of the
sentence.
Defendant was arrested and brought before the court on
August 17, 2011. The court began that proceeding by again
recounting defendant's guilty plea, including the PRS component,
and defendant's failure to appear at sentencing. No objection to
PRS was made at that time either.
Defendant appealed, arguing that his conviction should
be vacated under our holding in People v Catu (4 NY3d 242 [2005])
on the basis that County Court failed to apprise him of his PRS
term at the time of his plea. The Appellate Division affirmed.
A Judge of this Court granted defendant leave to appeal.
In People v Catu, this Court held that "the trial court
has the constitutional duty to ensure that a defendant, before
pleading guilty, has a full understanding of what the plea
connotes and its consequences" (4 NY3d at 244). A court is not
required to engage in any particular litany when allocuting a
defendant, but the record must be clear that the plea represents
a voluntary and intelligent choice among the alternative courses
of action open to the defendant (id. at 245). We found that
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"[p]ostrelease supervision is significant" and that a defendant
"must be aware of the postrelease supervision component of that
sentence in order to knowingly, voluntary and intelligently
choose among alternative courses of action" (id.).
Defendant claims that his plea was not knowing,
voluntary and intelligent under Catu because County Court failed
to reiterate the term of PRS during the plea colloquy. We hold
that, under the circumstances of this case, defendant was
required to preserve his claim.
Defendant and his attorney had three opportunities to
object to the imposition of PRS: at the initial scheduled
sentencing July 15, at his sentencing on July 28, and at the
appearance on August 17. Neither defendant nor defense counsel
expressed any objection to the imposition of PRS. Because
defendant had ample opportunity to raise an objection to the PRS
component prior to and during these proceedings, defendant was
required to preserve his claim (see People v Murray, 15 NY3d 725,
727 [2010]).
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People v Crowder (Adam)
No. 11
LIPPMAN, Chief Judge (dissenting):
The imposition of a preservation requirement,
compelling defendant to move to withdraw his plea under these
circumstances, is at variance with our existing precedent. I
would reverse the Appellate Division order because, on this
record, it is unclear that defendant was aware that postrelease
supervision (PRS) was part of his sentence at the time he took
his plea.
It is well settled that the court has an obligation to
inform a defendant of the direct consequences of his or her
guilty plea, including any applicable term of PRS (see People v
Catu, 4 NY3d 242, 244 [2005]). "Because a defendant pleading
guilty to a determinate sentence must be aware of the postrelease
supervision component of that sentence in order to knowingly,
voluntarily and intelligently choose among alternative courses of
action, the failure of a court to advise of postrelease
supervision requires reversal of the conviction" (Catu, 4 NY3d at
245). "[W]here 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
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absence of a postallocution motion" (People v Louree, 8 NY3d 545-
546 [2007]). We have observed that, in such circumstances, a
defendant cannot be expected to move to withdraw the plea "on a
ground of which he has no knowledge" (Louree, 8 NY3d at 546).
This case is distinguishable from People v Murray (15
NY3d 725, 727 [2010]), where we held that preservation was
required where "defendant was advised of what the sentence would
be, including its PRS term, at the outset of the sentencing
proceeding." Here, by contrast, defendant was not advised of the
PRS component of his sentence at the plea proceeding. Nor was he
advised that he was subject to PRS at the subsequent appearance
until the court actually imposed sentence -- when it was too late
to move to withdraw his plea (see CPL 220.60 [3]; Louree, 8 NY3d
at 546). Therefore, this case is more akin to those cases where
we have found that preservation was not required (see People v
Turner, 24 NY3d 254, 259 [2014]; People v McAlpin, 17 NY3d 936,
938 [2011]).
Moreover, it is not clear from the record that
defendant was aware he was agreeing to a sentence that included a
term of PRS. At the appearance prior to the plea proceeding, the
court did mention PRS, referring to a range of 1½ to 3 years.
However, the court's subsequent failure to make any reference to
PRS at the plea proceeding leads me to conclude that defendant
was not sufficiently aware of the terms of his plea agreement.
Defendant's conviction should therefore be reversed.
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The better rule in these situations would be to require
that a defendant must be advised of the term of PRS at the time
of the plea. This requirement -- to state each component of the
plea agreement on the record -- would hardly be an onerous burden
on the court and, when performed, makes simple an appellate
court's determination whether a defendant has been adequately
advised of the direct consequences of his plea. Moreover, in
those relatively rare instances where the plea court might
neglect to state the term of PRS at the plea proceeding, the
People should not hesitate to chime in and request that the court
do so. Such procedure is certainly more in keeping with the
parties' roles than imposing a preservation requirement and
expecting a defendant to request the imposition of additional
punishment in the form of PRS. The suggested procedure would
also alleviate the need for additional proceedings relating to
whether the indisputably and statutorily required term of PRS has
been properly imposed.
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Order affirmed, in a memorandum. Judges Read, Pigott, Rivera and
Abdus-Salaam concur. Chief Judge Lippman dissents and votes to
reverse in an opinion. Judges Stein and Fahey took no part.
Decided February 19, 2015
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