People v. Bush
38 N.Y.3d 66 (2022)
NY Court of Appeals
Decided on March 22, 2022
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Issue:
Whether defendant is entitled to review without preservation where he claimed that the court’s plea colloquy was deficient in stipulating that the sentence would include a one-year conditional discharge.
Holding:
The New York Court of Appeals held that defendant’s failure to preserve the claim at the plea hearing or at sentencing precluded review on appeal.
Facts:
Defendant Jeffrey Bush was indicted in May 2017 for two counts of criminal possession of a controlled substance in the third degree, a class B felony offense, and six other related offenses. In September 2017, the People offered a reduced plea to the Class A misdemeanor of criminal possession of a controlled substance in the seventh degree with a promised sentence of probation. In an off-the-record discussion, the People changed their sentence offer to 20 days of “community service instead of probation.” Defendant found the offer “reasonable,” and defense counsel accepted the plea offer, stating that “the plea is conditioned on him doing 20 days of community service, and if he does not do the community service, he can face up to one year in jail.”
Defendant was placed under oath and the court conducted a thorough plea allocution, wherein defendant confirmed he was satisfied with representation. Defendant noted concern about “the timing of the community service” and the court confirmed, “I will give you more than enough time to do it.” The court also advised defendant he “must return on the adjournment date,” and that it would not “specify” a schedule for the community service as defendant wanted to speak with his employer before scheduling.
At sentencing, defense counsel informed the court that Bush had completed his 20 days of community service. The court then asked the parties, “and the promise is a C.D.?” Both the prosecutor and defense counsel replied “yes.” The court imposed a one-year conditional discharge per Penal Law § 65.10[2], and that same day, defendant signed the court’s “conditional discharge” faorm.
On appeal, defendant sought a dismissal of the indictment, arguing that his guilty plea was involuntary as the court did not mention this conditional discharge at the time of the plea. The Appellate Division affirmed, holding that defendant’s claim was unpreserved.
Analysis:
When Defect in Plea Allocution Occurs, Defendant Must Preserve Claim
Defendant claimed that the court’s plea colloquy was deficient in stipulating the specific terms of the sentence promise, thereby affecting the voluntariness of the guilty plea. It is well established that a “trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” (People v Ford, 86 NY2d 397, 402-403 [1995]). However, when “a defect in a plea allocution is clear on the face of the record and implicates due process, the defendant must preserve his or her claim that the defect made the plea involuntary unless the defendant has no practical ability to do so” (People v. Williams, 27NY3d 212, 221-222 [2016]).
The defendant did not object to the sentence promise as described during the plea or the sentencing proceeding, nor did he protest the voluntary nature of his guilty plea. Defendant did not move to withdraw his guilty plea prior to sentencing as required by CPL 220.60(3), rather, he invoked the narrow exception to the preservation requirement involving the plea allocution, claiming “the particular circumstances of the case reveal that he had no actual or practical ability to object to an alleged error in the taking of the plea that was clear from the face of the record.”
The Court of Appeals disagreed, holding that defendant’s claim was without merit and that indeed, he did have the ability to object and preserve the claim he made on appeal. At sentencing, the court confirmed that the agreed-upon sentence was a conditional discharge and defendant was provided the opportunity to speak. If he did not understand the meaning of “C.D.”, defendant could have inquired in the moment but, barring that, he was not entitled to a greater remedy on appeal. The order of the Appellate Division was affirmed.