People v. Williams , 145 A.D.3d 100 ( 2016 )

OPINION OF THE COURT

Tom, J.

The Court of Appeals, in its remittitur of this case (People v Williams, 27 NY3d 212 [2016], revg 123 AD3d 240 [1st Dept 2014]), asks this Court to decide whether defendant’s unpre-served challenge to the validity of his plea should be reviewed as a matter of discretion in the interest of justice (id. at 224).

After his arrest and indictment on drug sale charges, defendant entered into a negotiated plea bargain. In exchange for his guilty plea, defendant was promised a three-year determinate sentence followed by a two-year period of postrelease supervision with the proviso that he not commit another crime before sentence was pronounced, among other conditions. The court and the parties mistakenly believed that the three-year sentence was the minimum permissible sentence.

During the plea colloquy, the court explicitly advised defendant that if he violated 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.” In response to the court’s questions, defendant stated that he understood and that he had spoken to his counsel about the plea deal and understood the conditions of the plea and the consequences of failing to fulfill them.

The three-year prison term was not a sentence lawfully available to defendant, because of his predicate felony status. Because defendant was a second felony drug offender previously convicted of a violent felony, he faced a statutory sentencing range of 6 to 15 years in prison on his third-degree drug sale conviction (see Penal Law § 70.70 [4] [b] [i]). But, the court was not informed of this issue and never discovered it on its own.

Before the sentencing, defendant was arrested for marijuana and trespass offenses. 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. After hearing testimony from a police officer and the parties’ arguments, the court found that defendant had violated the terms of the plea by engaging in misconduct constituting criminal possession of marijuana in the fifth degree (see Penal Law § 221.10 [1]).

At the sentencing 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 suborn perjury and arrange for the presentation of false evidence of an alibi in connection with his postplea marijuana offense. At no point did defendant challenge the legality of the initial promised three-year determinate sentence or the sentencing range. The court then 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.” Subsequently, defendant appealed.

A divided panel of this Court 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 at 241-247). The majority concluded that the plea had violated due process because it was induced by an illegal sentence and that preservation therefore was not required (id. at 244). On the merits, the Court ruled that Supreme Court’s error had affected the voluntariness of defendant’s plea, and 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]). According to the dissent, defendant had to preserve his challenge to the legality of his guilty plea, and the court’s imposition of a lawful six-year prison term was within the range of sentence promised in the event that defendant violated the terms of the plea agreement and therefore met his legitimate sentencing expectations (see id. at 248-250).

The Court of Appeals reversed this Court on preservation grounds, holding that defendant was “obligated to preserve his claim” (27 NY3d at 225), and had a “reasonable opportunity to attack the legality of his guilty plea in the court of first instance” but did not “take advantage of that opportunity,” and thus “failed to preserve his current claim for appellate review” (id. at 214).

The Court of Appeals remitted this case for consideration of the facts and issues raised but not determined on the prior appeal to this Court. Specifically, we are to consider whether to review defendant’s unpreserved challenge to the validity of his plea as a matter of discretion in the interest of justice (id. at 224). We decline to do so.

Defendant contends that his guilty plea was not knowing, voluntary and intelligent because the initial promised sentence which induced the plea was illegal, and because the plea conditions were ambiguous. The dissent concludes that the plea violated defendant’s due process rights because “the evident misunderstanding by the trial court and by the parties in this matter [regarding the correct sentencing range], result[ed] in defendant’s incomplete understanding of the implications of entering a guilty plea” (quoting Williams at 247).

It is settled that when a criminal defendant waives the fundamental right to trial by jury and pleads guilty, due process requires that the waiver be knowing, voluntary and intelligent (People v Catu, 4 NY3d 242, 245 [2005]). However, defendant’s present due process claim is without merit. The Court of Appeals has implied that the illegality of the promised sentence does not, in itself, render a defendant’s guilty plea unknowing and involuntary (see People v Williams, 87 NY2d 1014, 1015 [1996]). In Williams, the Supreme Court, sua sponte, resen-tenced defendant to 3V2 to IOV2 years pursuant to a guilty plea to burglary in the second degree because the originally-imposed sentence of 3V2 to 7 years was unlawful (id.). The Court of Appeals, in rejecting the defendant’s attempt to vacate the plea on double jeopardy grounds stated, “That claim would be color-able only if the defendant’s sentence had been increased beyond his legitimate expectations of what the final sentence should be” (id.). Since the sentencing court informed the defendant during the plea proceeding that he could receive a sentence of up to 15 years in prison, the sentence of 3V2 to IOV2 years was within his legitimate expectation of the final sentence (id.; see also People v Collier, 22 NY3d 429, 433-434 [2013], cert denied 573 US —, 134 S Ct 2730 [2014]). Indeed, in Collier, the Court of Appeals held that

“if the originally promised sentence cannot be imposed in strict compliance with the plea agreement, the sentencing court may impose another lawful sentence that comports with the defendant’s legitimate expectations. Again, ‘the reasonable understanding and expectations of the parties, rather than technical distinctions in semantics, control the question of whether a particular sentence imposed violates a plea agreement’ ” (id. at 434, quoting Gammarano v United States, 732 F2d 273, 276 [2d Cir 1984]).

Here, defendant was told that he could receive up to 12 years’ imprisonment if he failed to comply with the conditions set by the court. In fact, he was expressly warned during the plea proceedings that if he committed another crime before the sentence was pronounced he could be sentenced up to 12 years, that he would not get his plea back, and that the court would decide the appropriate sentence. Thus, the six-year statutory minimum sentence finally imposed after defendant violated the conditions of the plea was clearly within the legitimate expected sentencing range of up to 12 years (Collier, 22 NY3d at 434; see also People v DeValle, 94 NY2d 870, 871-872 [2000]). The dissent focuses on the promised sentence of three years. However, this was a conditional plea agreement and defendant violated the conditions of the plea. Thus, he was no longer entitled to the three-year sentence. Because the final sentence was lawful and within the expectations of the parties, defendant’s plea did not violate his due process rights. More succinctly, because defendant violated the conditions of the plea, “there could be no expectation of finality on his part with respect to the lesser and illegal sentence” (People v Williams, 87 NY2d at 1015).

Notably, the Court of Appeals’ binding rulings in Williams, Collier, and DeValle are controlling law and dispositive of defendant’s due process claim. The dissent relies on the dissenting opinion to the Court of Appeals’ decision remitting this case to us (see People v Williams, 27 NY3d at 225-235), to refute these rulings. However, even that dissenting opinion recognized that a sentencing court has the power to correct an illegal sentence (id. at 228). Further, that dissenting opinion addresses the situation where a defendant violates a condition of the plea, and citing People v Murray (15 NY3d 725 [2010]), recognizes that when a defendant is told a plea is conditional, and advised of the sentence to be imposed should the defendant violate the terms, the court may properly issue an enhanced sentence pursuant to the terms of the plea deal (27 NY3d at 230).

Even if defendant had fulfilled the condition to be entitled to receive the promised sentence, it is settled that a “[defendant cannot rely on a promise by the court to impose a sentence which it could not lawfully impose” (People v Bullard, 84 AD2d 845, 845 [2d Dept 1981]), and “[the] courts have the inherent authority to remedy an illegal sentence by permitting modification to bring the sentence within the . . . sentencing range that the defendant understood would be available upon conviction” (People v Richardson, 100 NY2d 847, 851 [2003]). There is no basis to permit this defendant to withdraw his plea or to restore the parties to their status before the plea agreement was reached.

Further, defendant challenges the validity of the condition that he not commit a crime as unclear and nonspecific. He maintains that an objectively reasonable interpretation of that condition was that it meant not being convicted of a crime. Notably, however, after the court reviewed the conditions and the consequences of violating any of the conditions, defendant confirmed that he understood. That neither defendant nor his counsel expressed confusion or asked for clarification suggests that the meaning of that condition was clear. Further, the court in no way suggested that defendant would violate the plea agreement only if he pleaded guilty or was convicted of a crime after trial (see People v Delgado, 45 AD3d 496 [1st Dept 2007], lv denied 9 NY3d 1032 [2008]). Rather, the court made clear that it would not find a violation based upon an arrest, but would determine whether defendant had committed a crime, and it conducted a hearing for that purpose. Thus, the court properly enhanced defendant’s sentence based on its finding that defendant had committed a crime, in violation of a specific, unambiguous condition of the plea agreement.

The dissent, relying on and quoting at length the dissenting opinion to the Court of Appeals’ decision remitting this case to us (see People v Williams, 27 NY3d at 225-235), concludes that we should exercise interest of justice review because this case raises “significant public policy concerns” concerning “public confidence in plea bargaining” and a system that “tolerates unenforceable bargains.”

However, precedential cases involving interest of justice review make clear that such review applies on a case-by-case basis, and is not designed or intended to be used to resolve public policy concerns or for a system-wide fix (see People v Harmon, 181 AD2d 34, 36 [1st Dept 1992]; see also CPL 210.40). By way of analogy, the factors set forth in CPL 210.40 for considering whether to dismiss an indictment in the interest of justice reflect a “sensitive balance between the individual and the State” (People v Clayton, 41 AD2d 204, 208 [2d Dept 1973] [emphasis added]; see People v Reyes, 174 AD2d 87, 89 [1st Dept 1992]). While there may be legitimate concerns about our criminal justice system, the appropriate remedy to improving our system lies with the legislature or must be raised in a proper case.^*

The dissent relies on People v Rosado (96 AD3d 547 [1st Dept 2012]) to support the position that we can exercise interest of justice review to “examine an unpreserved question that has importance beyond the individual case.” However, the holding in Rosado deviates from our accepted and long established precedent regarding the extremely limited circumstances in which we should exercise interest of justice jurisdiction.

The numerous cases I cite below represent the long-standing precedent of this Court as to what circumstances warrant the exercise of interest of justice review notwithstanding the fact that CPL 470.15 does not set forth guidelines. People v Ramos (33 AD2d 344 [1st Dept 1970])—relied on by the dissent— predates CPL 470.15 and is based on section 527 of the Code of Criminal Procedure, in effect at that time. In any event, even Ramos recognized that “our ultimate concern should be the interests of justice in this particular case” (33 AD2d at 348). Moreover, in line with the cases set forth below, it was because the defendant’s guilt in Ramos was unclear that we exercised interest of justice review, vacated the conviction and directed a new trial.

Indeed, it is settled that the discretionary act to vacate a conviction in the interest of justice is to be “exercised sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations” (People v Harmon, 181 AD2d at 36 [internal quotation marks omitted]; CPL 470.15 [6] [a]). In order to exercise our interest of justice jurisdiction, there must exist “special circumstances deserving of recognition” (People v Chambers, 123 AD2d 270, 270 [1st Dept 1986]). In other words, this Court will not exercise its interest of justice jurisdiction absent “extraordinary circumstances” (People v Marshall, 106 AD3d 1, 11 [1st Dept 2013] [internal quotation marks omitted], lv denied 21 NY3d 1006 [2013]).

This case and this defendant do not present special or extraordinary circumstances that would warrant exercising our interest of justice review power. In People v Kidd (76 AD2d 665 [1st Dept 1980], appeal dismissed 51 NY2d 882 [1980]), we exercised our interest of justice jurisdiction to reverse a conviction and dismiss an indictment where there were many “troublesome” inconsistencies with respect to the identification of the defendant (id. at 666, 669). Although we concluded that the conviction was supported by legally sufficient evidence, we were “left with a very disturbing feeling that guilt ha[d] not been satisfactorily established” and “that there [wa]s a grave risk that an innocent man ha[d] been convicted” (id. at 668). Accordingly, we could not let the conviction stand. Recognizing that we should not use our interest of justice review in a “capricious and whimsical” manner, we remarked “we think we do not overstep the line when we exercise our Interest of justice’ powers on the basis of so fundamental a consideration as guilt or innocence” (id. at 667). In sum, the exercise of interest of justice review must be warranted by the individual case in front of us, and must involve “special circumstances” such as the risk that an innocent defendant has been convicted. This is not such a case.

Moreover, defendant in this case is not a proper candidate for the Court to exercise our interest of justice review pursuant to CPL 470.15 (3) (c). The defendant was previously convicted of a violent felony—attempted criminal possession of a weapon in the second degree. His current conviction of criminal sale of a controlled substance in the third degree came about after defendant and two codefendants sold crack cocaine to an undercover police officer in or near school grounds. Defendant’s factual allocution at the plea proceeding made clear that he was guilty of third-degree sale of a controlled substance and he never challenged his predicate felony status. Accordingly, there is no risk that an innocent defendant has been convicted.

Defendant also violated the plea agreement by committing a crime during the period between the plea and sentencing proceedings. Even worse, recorded conversations from Rikers establish that, in an effort to avoid the consequences of his violation of the plea conditions, defendant sought to suborn perjury and arrange for the presentation of false testimony from friends and relatives of an alibi in connection with his postplea marijuana offense.

In sum, there is nothing rare or unusual about this case or this defendant. The plea proceedings do not raise a concern about defendant’s guilt. Defendant was advised of the rights he was waiving by pleading guilty and affirmed he was pleading guilty of his own free will. Defendant was represented by counsel and received a favorable sentence. Finally, defendant violated the plea agreement by committing another crime and the final sentence imposed was both legal and within the range announced by the court. Nor has defendant presented anything to demonstrate that his case is extraordinary. These facts, coupled with defendant’s failure to preserve the issue for review, fail to support the exercise of our discretion to review in the interest of justice, and militate against such exercise.

Accordingly, upon remittitur from the Court of Appeals, the judgment of the Supreme Court, New York County (Edward J. McLaughlin, J.), rendered January 24, 2012, as amended on February 1, 2012 and February 28, 2012, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of six years, should be affirmed.

* Indeed, in its decision remitting the case to this Court, the Court of Appeals noted that the legislature was “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” (People v Williams, 27 NY3d at 225 n 3).