People v. CumberbatchPeople v. Cumberbatch
Richard M. Greenberg, Office of the Appellate Defender, New York City (Margaret E. Knight, Risa Gerson and Benjamin Fidalgo of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York City (Julie Paltrowitz, Mark Dwyer and Beth Fisch Cohen of counsel), for respondent.
OPINION OF THE COURT
MARLOW, J.
The principal issue on this appeal is whether a claim under People v Catu (4 NY3d 242 [2005]) must be preserved for appellate review. Defendant contends that this Court should invalidate his plea because Supreme Court failed to advise him during the plea discussions, plea colloquy, or prior to imposing sentence that the negotiated disposition would include a mandatory period of postrelease supervision.
In November 2002 defendant and two accomplices robbed two women at gunpoint and were indicted on robbery, assault and weapon possession charges. In June 2003, defendant pleaded guilty to robbery in the first degree in full satisfaction of the indictment. After discussing the matter with counsel, the court advised defendant that by pleading guilty he was giving up his right to pretrial hearings and a trial and that he could be deported. In exchange for his plea, the court promised defendant a sentence of nine years. The court released defendant on bail pending sentence, but warned that if he failed to appear the promise would be vacated and defendant would face up to the statutory maximum sentence for robbery in the first degree. Defendant failed to appear for sentencing on October 7, 2003, and the court issued a bench warrant. Several weeks later, the police arrested defendant in Virginia for possession of stolen property and involuntarily returned him to New York.
On February 11, 2004, defendant appeared for sentence and asked the court to impose a sentence as close as possible to the original promise. To support his sentencing request, a number of people attested that the robbery was atypical and that de
The People argued that defendant had been offered lenient treatment because he had agreed to provide federal agents with information about stolen guns. However, he failed to stay in contact with them nor did he provide useful information. In addition, defendant fled this jurisdiction. After his arrest in Virginia for possession of stolen license plates, he returned involuntarily to New York. When arrested, defendant provided a false name, false address, and false date of birth. Moreover, the People noted that his sentencing predated his friend‘s medical emergency, and, finally, that the doctor‘s letter was a forgery.
The court imposed a sentence of 11 years plus five years’ postrelease supervision. Defendant did not object to the sentence at the time it was imposed nor did he thereafter move to vacate the judgment of conviction. In fact, there is no hint of a complaint until this appeal.
Defendant‘s contention that he was not adequately informed of the rights he was giving up as a consequence of his guilty plea is unpreserved. A defendant who challenges the sufficiency of his or her guilty plea must preserve the challenge by moving to withdraw the plea pursuant to
The Court of Appeals has defined postrelease supervision as a direct, and not collateral, consequence of a plea (see People v Van Deusen, 7 NY3d 744 [2006]; People v Catu, supra), and we recognize that this Court in People v Armstrong (31 AD3d 291 [2006]); People v Evans (30 AD3d 1130 [2006]); and People v Bracey (24 AD3d 363 [2005]) has concluded that this error is so fundamental that it need not be preserved for appellate review.* However, we do not believe that the failure to be advised of a statutorily mandated sentencing scheme is so fundamental an error as to rise to the level of that particularly circumscribed and narrow class of cases where preservation is not required (see People v Gray, 86 NY2d 10, 21 [1995]; People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]; People v Udzinski, 146 AD2d 245, 248-252 [1989], lv denied 74 NY2d 853 [1989]). We see no reason why the ordinary rules of preservation should not apply, and, indeed, no authority is cited in Armstrong, Evans or Bracey to support the position that this error is so fundamental that preservation is not required.
Here, defendant had ample opportunity to object to the imposition of postrelease supervision prior to his appeal. He could have raised the objection at sentencing when he first became aware his jail time would be followed by five years’ postrelease supervision, or he could have thereafter immediately moved to vacate his conviction. Either option would have af
Moreover, as a practical matter, it would be ill-advised to permit a defendant to raise an unpreserved claim of this type perhaps years after a criminal case has been concluded, when witnesses may be unavailable, evidence may have been discarded, destroyed, or returned, and memories are likely compromised by time (see People v Bracey, 24 AD3d at 365 [dissenting mem]).
Finally, as for defendant‘s plaint that his sentence is excessive, we note it is in accord with his plea agreement and within statutory guidelines. Having received the benefit of his bargain, defendant should be bound by its terms and not be heard to undermine them (People v Rada, 160 AD2d 552 [1990]; People v Felman, 141 AD2d 889, 890 [1988], lv denied 72 NY2d 918 [1988]). We perceive no basis to reduce defendant‘s sentence in the interest of justice.
Accordingly, the judgment of the Supreme Court, New York County (Budd G. Goodman, J.), rendered February 11, 2004, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him to a term of 11 years and five years’ postrelease supervision, should be affirmed.
Saxe, J.P., Sullivan, Gonzalez and Malone, JJ., concur.
Judgment, Supreme Court, New York County, rendered February 11, 2004, affirmed.