Opinion
208 KA 17–00933
03-13-2020
The PEOPLE of the State of New York, Respondent, v. Cindy SHIELDS, Defendant–Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT–APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT–APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER 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 Oneida County Court for further proceedings on the indictment. Memorandum: On appeal from a judgment convicting her upon her plea of guilty of assault in the first degree ( Penal Law § 120.10[1] ), defendant contends that her plea was not knowingly, voluntarily, and intelligently entered because County Court threatened to impose a greater sentence in the event of a conviction following trial. Although that contention survives defendant's valid waiver of the right to appeal (see People v. Garner, 111 A.D.3d 1421, 1421, 974 N.Y.S.2d 868 [4th Dept. 2013], lv denied 23 N.Y.3d 1036, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ), defendant failed to move to withdraw her plea or to vacate the judgment of conviction and thus failed to preserve her contention for our review (see People v. Kelly, 145 A.D.3d 1431, 1431, 42 N.Y.S.3d 913 [4th Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ; People v. Flinn, 60 A.D.3d 1304, 1305, 875 N.Y.S.2d 364 [4th Dept. 2009] ). Nevertheless, we exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][a] ).
At an appearance prior to the plea proceeding, the court stated that, if defendant decided to reject the plea offer and was convicted after trial, it intended to impose the maximum sentence on the top count and consecutive time on an unnamed additional count. At that same appearance, the court said that defendant and her codefendants, who were her sister and brother-in-law, would also be federally prosecuted and that "the evidence is overwhelming here." It is well settled that "[a] defendant may not be induced to plead guilty by the threat of a heavier sentence if he [or she] decides to proceed to trial" ( People v. Christian [Appeal No. 2], 139 A.D.2d 896, 897, 527 N.Y.S.2d 1020 [4th Dept. 1988], lv denied 71 N.Y.2d 1024, 530 N.Y.S.2d 559, 526 N.E.2d 51 [1988] ; see People v. Boyd, 101 A.D.3d 1683, 1683, 956 N.Y.S.2d 382 [4th Dept. 2012] ). Here, we agree with defendant that "the court's statements do not amount to a description of the range of the potential sentences but, rather, they constitute impermissible coercion, ‘rendering the plea involuntary and requiring its vacatur’ " ( Flinn, 60 A.D.3d at 1305, 875 N.Y.S.2d 364 ; see People v. Kelley, 114 A.D.3d 1229, 1230, 980 N.Y.S.2d 850 [4th Dept. 2014] ). Consequently, we reverse the conviction, vacate the plea, and remit the matter to County Court for further proceedings on the indictment.
In light of our determination, we do not address defendant's remaining contentions.