Opinion
533 KA 15–01936
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Ruben R. SMITH, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of falsifying business records in the first degree ( Penal Law § 175.10 ). Defendant contends that his plea was involuntary because it was induced by County Court's promise, subsequently unfulfilled, that he would be admitted into a shock incarceration program. To the extent that defendant was required to preserve that contention for our review but failed to do so (see People v. Williams , 27 N.Y.3d 212, 224, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
The record establishes that the court believed it had the authority to grant defendant admission into a shock incarceration program and that it made such admission a condition of defendant's guilty plea. At sentencing, the court acted in accordance with its perceived authority and the plea agreement by imposing a term of incarceration of 1½ to 3 years "with shock camp." There is no dispute that defendant was not admitted into a shock incarceration program.
We agree with defendant that the court had no authority to assure him of admission into a shock incarceration program or to impose such as part of the sentence (see People ex rel. Dickerson v. Unger , 62 A.D.3d 1262, 1263, 877 N.Y.S.2d 727 [4th Dept. 2009], lv denied 12 N.Y.3d 716, 2009 WL 1851331 [2009] ). Inasmuch as the record establishes that defendant, in accepting the plea, relied on a promise of the court that could not, as a matter of law, be honored, defendant is entitled to vacatur of his guilty plea (see People v. Muhammad , 132 A.D.3d 1068, 1069, 18 N.Y.S.3d 461 [3d Dept. 2015] ).
It is hereby ORDERED that the judgment so appealed from is unanimously reversed as a matter of discretion in the interest of justice and on the law, the plea is vacated, and the matter is remitted to Monroe County Court for further proceedings on the indictment.