New York Court of Appeals On Post Release Supervision: Trial Court Does Not Have To Mention That Component At Sentence If Defendant Is Aware
People v Crowder
2015 NY Slip Op 01481
New York Court of Appeals
Decided on February 19, 2015
Blog by: Stephen N. Preziosi Esq., Criminal Appeals Lawyer
The Court of Appeals reminds defendants that issues can be waived by failing to raise and preserve them for appellate review.
Issue: Whether a defendant who is aware of a post-release supervision (“PRS”) component of a plea bargain, but is not expressly advised of it by a trial court on the record before pleading guilty, can nonetheless waive the claim by failing to object to its imposition before sentencing?
Summary: Defendant appealed from a judgment convicting him after a guilty plea of a D violent felony in which the trial court sentenced him, in absentia, to a five year determinate sentence of imprisonment to be followed by three years of PRS for violating parole. He argued to the Appellate Division, Third Department that his conviction should be vacated on the basis that his plea was not knowing, voluntary, and intelligent because the trial court failed to apprise him of his PRS during the plea colloquy. The Appellate Division affirmed defendant’s conviction finding that he and his counsel were aware of the PRS component, failed to object to it when raised during sentencing, waived it, and therefore failed to preserve it for appellate review. The Court of Appeals granted defendant leave to appeal, but then affirmed the Appellate Division’s decision upholding the conviction.
Holding: The Court of Appeals held that under the circumstances of this case, defendant was aware of the PRS component, waived his claim by failing three times to object to its imposition, and thus failed to preserve the issue for appellate review.
Facts: Defendant was indicted on charges of burglary in the second degree (Penal Law § 140.25) and criminal mischief in the third degree (Penal Law § 140.05). He appeared at a combined evidentiary hearing and the trial court set forth the following proposed plea bargain on the record: (a) the People offered a D violent felony with a minimum of two years in state prison with one-and-a-half to three years post-release supervision (PRS) or parole. Defendant was given time to consider the plea bargain. Three days later, he returned and accepted it. On the record, the trial court reiterated the prison term, but failed to mention the PRS component. Defendant requested to attend drug rehabilitation before the imposition of his sentence under the supervision of probation, and subject to drug testing, which was accepted. However, he was warned that his sentence would be enhanced if he failed to comply. He pled guilty and executed a written waiver of his right to appeal.
Five months later, the probation department informed the trial court that defendant had failed to cooperate with them, or undertake the required drug testing. Thereafter, he failed to appear for his initial sentencing date without explanation. His defense counsel did appear. Sentencing was adjourned for two week. However, defendant again failed to appear without explanation. Notwithstanding, he was sentenced, in absentia, to an enhanced five year determinate sentence of imprisonment to be followed by three years of PRS. Defense counsel did not object to the imposition of the PRS component of the sentence. This sentence was confirmed at a subsequent hearing at which defendant was present. The trial court began the proceeding by recounting defendant’s guilty plea, including the PRS component and his failure to appear at the sentencing hearing. No objection to the PRS component was made by defendant or his counsel.
Defendant appealed to the Appellate Division, Third Department arguing that his conviction should be vacated on the basis that his plea was not knowing, voluntary, and intelligent under the holding in People v. Catu, 4 N.Y.3d 242 because the trial court failed to apprise him of his PRS during the plea colloquy. The Appellate Division affirmed his conviction finding that he and his counsel were aware of the PRS component, failed to object to it when raised during sentencing, waive it, and therefore failed to preserve it for appellate review. The Court of Appeals granted defendant leave to appeal, but then affirmed the Appellate Division’s decision upholding the conviction.
Legal Analysis: The Court of Appeals first reaffirmed that under People v. Catu, “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”. This requires that a defendant be aware of a PRS component of a sentence in order to “knowingly, voluntarily, and intelligently choose among alternative courses of action”. In upholding defendant’s conviction, the majority expressly provided that under the circumstances of this case, defendant was aware of the PRS component but waived his claim by failing three times to object to its imposition. Thus, defendant failed to preserve his claim for appellate review under People v. Murray, 15 N.Y.3d 725, 727.
In a dissenting opinion, Chief Judge Lippman stated that he would reverse the Appellate Division because it was unclear on the record that defendant was sufficiently aware that the PRS component was part of his sentence at the time he plead guilty. Further, he reasoned that trial courts should be required to advise defendants of the term of PRS at the time of their plea in the interest of fairness and judicial economy.