Opinion
478 KA 15-00651
08-20-2020
The PEOPLE of the State of New York, Respondent, v. Keion PETERSON, Defendant-Appellant.
REEVE BROWN PLLC, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
REEVE BROWN PLLC, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, indictment No. 2014-042 is reinstated and the matter is remitted to Livingston County Court for further proceedings on indictment Nos. 2014-042 and 2014-172.
Memorandum: Defendant appeals from a judgment entered in Livingston County convicting him upon a plea of guilty of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39 [1] ). The plea satisfied another indictment pending against defendant in Livingston County (indictment No. 2014-042). Pursuant to the plea agreement, County Court sentenced defendant to a determinate term of imprisonment that was to run concurrently with a 10-year sentence previously imposed on defendant in Monroe County for criminal possession of a weapon in the second degree. We later reversed the Monroe County judgment and dismissed the indictment ( People v. Peterson , 159 A.D.3d 1588, 72 N.Y.S.3d 319 [4th Dept. 2018] ). Defendant now contends, and the People correctly concede, that, inasmuch as his plea in Livingston County was induced by the promise of a concurrent sentence, which is no longer possible, the judgment must be reversed and the plea vacated (see People v. Rowland , 8 N.Y.3d 342, 345, 834 N.Y.S.2d 58, 865 N.E.2d 1224 [2007] ; People v. Pichardo , 1 N.Y.3d 126, 129, 769 N.Y.S.2d 791, 802 N.E.2d 141 [2003] ; cf. People v. Walker , 148 A.D.3d 1569, 1569, 52 N.Y.S.3d 756 [4th Dept. 2017], lv denied 29 N.Y.3d 1088, 64 N.Y.S.3d 178, 86 N.E.3d 265 [2017] ; People v. Kalinowski , 84 A.D.3d 1739, 1741, 922 N.Y.S.2d 704 [4th Dept. 2011] ; see also People v. Williams , 79 A.D.3d 1653, 1655, 914 N.Y.S.2d 521 [4th Dept. 2010], affd 17 N.Y.3d 834, 930 N.Y.S.2d 530, 954 N.E.2d 1155 [2011] ). This will result in the reinstatement of indictment No. 2014-042, which was satisfied by defendant's plea (see CPL 470.55 [2] ; see generally People v. Green , 56 A.D.3d 1238, 1239, 866 N.Y.S.2d 895 [4th Dept. 2008] ).
Defendant further contends that the court erred in determining that indictment No. 2014-042 was supported by legally sufficient evidence and that the grand jury proceedings in that case were not defective. That contention is not properly before us on this appeal.