Opinion
1146 KA 16–00793
02-01-2019
The PEOPLE of the State of New York, Respondent, v. Brian TCHIYUKA, Defendant–Appellant.
HUG LAW, PLLC, ALBANY (MATTHEW C. HUG OF COUNSEL), FOR DEFENDANT–APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
HUG LAW, PLLC, ALBANY (MATTHEW C. HUG OF COUNSEL), FOR DEFENDANT–APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Oneida County Court for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him upon his plea of guilty of robbery in the second degree ( Penal Law § 160.10[2][b] ), defendant contends that his plea was induced by a promise of jail time credit that cannot legally be fulfilled. Preliminarily, we note that defendant's contention survives his waiver of the right to appeal (see People v. Bethea , 133 A.D.3d 1033, 1034, 19 N.Y.S.3d 191 [3d Dept. 2015], lv denied 27 N.Y.3d 992, 38 N.Y.S.3d 102, 59 N.E.3d 1214 [2016] ; People v. Williams , 84 A.D.3d 1417, 1418, 924 N.Y.S.2d 539 [2d Dept. 2011], lv denied 17 N.Y.3d 863, 932 N.Y.S.2d 28, 956 N.E.2d 809 [2011] ; see generally People v. Copes , 145 A.D.3d 1639, 1639, 44 N.Y.S.3d 833 [4th Dept. 2016], lv denied 28 N.Y.3d 1182, 52 N.Y.S.3d 709, 75 N.E.3d 101 [2017] ). Moreover, although defendant's contention is unpreserved for appellate review (see People v. Williams , 27 N.Y.3d 212, 219–225, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ), we exercise our power to address it as a matter of discretion in the interest of justice (see e.g. People v. Smith , 160 A.D.3d 1475, 1475, 72 N.Y.S.3d 910 [4th Dept. 2018] ; People v. Muhammad , 132 A.D.3d 1068, 1069, 18 N.Y.S.3d 461 [3d Dept. 2015] ).With respect to the merits, it is undisputed that, as part of his plea bargain, defendant was promised 203 days of jail time credit against the custodial term of his negotiated sentence. As the People correctly concede, however, that promise cannot legally be fulfilled. Penal Law § 70.30(3) provides that jail time credit "shall not include any time that is credited against the term ... of any previously imposed sentence," and the 203 days at issue here were already applied by operation of law against an undischarged sentence previously imposed upon defendant for an unrelated crime (see § 70.40[3][c][i]; Matter of Santora v. Sheak , 120 A.D.2d 887, 888, 502 N.Y.S.2d 550 [3d Dept. 1986] ; see also People v. Drake , 155 A.D.3d 1584, 1585, 64 N.Y.S.3d 441 [4th Dept. 2017] ; Matter of Booker v. Laffin , 98 A.D.3d 1213, 1213, 950 N.Y.S.2d 921 [3d Dept. 2012] ). Thus, under the plain language of section 70.30(3), County Court had no power to promise defendant 203 days of jail time credit against the instant sentence (see Drake , 155 A.D.3d at 1585, 64 N.Y.S.3d 441 ; Matter of Blake v. Dennison , 57 A.D.3d 1137, 1138, 868 N.Y.S.2d 827 [3d Dept. 2008], lv denied 12 N.Y.3d 710, 2009 WL 1298942 [2009] ). Contrary to the parties' assertions, however, the error in this case is not traceable in any respect to section 70.25(2–a)." ‘[A] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored’ " ( People v. Collier , 22 N.Y.3d 429, 433, 982 N.Y.S.2d 34, 5 N.E.3d 5 [2013], cert. denied 573 U.S. 908, 134 S.Ct. 2730, 189 L.Ed.2d 770 [2014], quoting People v. Selikoff , 35 N.Y.2d 227, 241, 360 N.Y.S.2d 623, 318 N.E.2d 784 [1974], cert. denied 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 [1975] ). " ‘The choice rests in the discretion of the sentencing court’ and ‘there is no indicated preference for one course over the other’ " ( id. ). Where, as here, "the originally promised sentence cannot be imposed in strict compliance with the plea agreement, the sentencing court may impose another lawful sentence that comports with the defendant's legitimate expectations" ( id. at 434, 982 N.Y.S.2d 34, 5 N.E.3d 5 ). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court either to impose a sentence that comports with defendant's legitimate expectations or to afford defendant an opportunity to withdraw his plea (see People v. Collier , 79 A.D.3d 1162, 1163, 912 N.Y.S.2d 722 [3d Dept. 2010], affd 22 N.Y.3d 429, 982 N.Y.S.2d 34, 5 N.E.3d 5 [2013] ; Drake , 155 AD3d at 1585 ). Because defendant is a second violent felony offender, any sentence of imprisonment imposed on remittal must be in "whole or half years" ( Penal Law § 70.04[2] ; see People v. VanValkinburgh , 90 A.D.3d 1553, 1554, 934 N.Y.S.2d 904 [4th Dept. 2011] ).