Opinion
11-21-2017
The PEOPLE of the State of New York, Respondent, v. Roberto SANCHEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Arielle Reid of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Arielle Reid of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan of counsel), for respondent.
RICHTER, J.P., MAZZARELLI, KAHN, MOULTON, JJ.
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered November 24, 2015, convicting defendant, upon his plea of guilty, of assault in the first degree, and sentencing him, as a second violent felony offender, to a term of 10 years, unanimously reversed, on the law, the plea vacated, and the matter remanded for further proceedings.
A defendant forfeits his right to appellate review of a CPL 30.30 motion upon a guilty plea (see People v. O'Brien, 56 N.Y.2d 1009, 453 N.Y.S.2d 638, 439 N.E.2d 354 [1982], citing People v. Suarez, 55 N.Y.2d 940, 449 N.Y.S.2d 176, 434 N.E.2d 245 [1982] ). However, here, the record is clear that the court misadvised defendant that he could pursue his 30.30 claim on appeal of a guilty plea (see People v. Williams, 123 A.D.3d 1376, 1377, 997 N.Y.S.2d 544 [3d Dept.2014] ; People v. Dalton, 69 A.D.3d 1235, 1235–1236, 893 N.Y.S.2d 692 [3d Dept.2010] ). Neither the defense counsel nor the prosecutor corrected the court's misadvice. Moreover, defendant accepted a lengthier sentence, and declined to replead to a different offense with a shorter prison sentence, based on this misstatement that his 30.30 claim could be raised on appeal. Under the totality of these circumstances, defendant's plea is vacated and the matter remanded (see Williams at 1377–1378, 997 N.Y.S.2d 544 ; see generally People v.
Gray, 62 A.D.3d 1256, 879 N.Y.S.2d 265 [4th Dept.2009] ). As defendant had no practical ability to object to the error because he was sentenced on the date the misstatement occurred, (see Williams at 1377, 997 N.Y.S.2d 544, quoting People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert. denied, sub nom. Thomas v. New York, 574 U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ), he was not required to preserve his argument.
In light of the foregoing, we need not reach defendant's remaining arguments.