Lead Opinion
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered January 26, 2011, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the second degree, sentencing him to concurrent terms of three years and 3V2 years respectively, and ordering forfeiture of $34,505, affirmed.
At sentencing, defendant and the People executed, and the court so-ordered, a stipulation wherein defendant agreed to forfeit, pursuant to CPL 220.50 (6), the sum of $34,505 seized at the time of his arrest on drug charges. The stipulation bore the criminal caption “THE PEOPLE OF THE STATE OF NEW YORK v Ruben Burgos, Defendant.” After the stipulation was executed, the court sentenced defendant to the promised term of imprisonment. Defendant now appeals from the judgment of conviction seeking to vacate the forfeiture stipulation.
At the outset, we reject the People’s contention, adopted by the dissent, that this appeal is not properly before us because the forfeiture was not part of the judgment of conviction. Pursuant to Penal Law § 60.30, a court has the authority to order a forfeiture of property, and any order exercising that authority “may be included as part of the judgment of conviction.” In People v Detres-Perez (127 AD3d 535 [1st Dept 2015]), relying on Penal Law § 60.30, this Court recently found that a forfeiture agreement was part of the judgment of conviction and thus reviewable on the appeal from the judgment. Likewise here, the court’s so-ordering of the stipulation at the time of sentencing rendered it part of the judgment of conviction and reviewable on this appeal as of right (see CPL 450.10). Contrary to the dissent’s position, we do not conclude that Penal Law § 60.30 authorizes the inclusion of forfeiture as part of a de
The appeal being properly before us, the judgment of conviction should be affirmed. At sentencing, defendant did not raise any of his current appellate challenges to the stipulation, seek to withdraw his plea, or otherwise express any unwillingness to proceed with sentencing if forfeiture was a condition of the plea. Thus, defendant’s claims are unpreserved (see People v Detres-Perez, 127 AD3d at 535), and we decline to reach them in the interest of justice.
As an alternative holding, we reject the claims on the merits. Defendant contends that the forfeiture stipulation is not enforceable because the procedures set forth in Penal Law § 480.10 were not followed. The stipulation makes clear, however, that the forfeiture was governed by CPL 220.50, not Penal Law § 480.10 (see People v Rodriguez, 123 AD3d 631 [1st
Dissenting Opinion
dissents in a memorandum as follows: On this appeal, defendant seeks to challenge his forfeiture of $34,505 pursuant to a written stipulation that he signed on the date of his sentence. Defendant contends that the forfeiture was not carried out in the manner prescribed by Penal Law § 480.10. Accordingly, he argues that “[b]ecause the forfeiture mandate was not authorized as a matter of law, the judgment should be modified on the law by vacating the forfeiture of appellant’s money.” The stipulation was so-ordered by the court and contains a recital that the money was subject to forfeiture as “a condition of defendant’s plea.” Nonetheless, I dissent and would dismiss this appeal because I disagree with the majority’s premise that the forfeiture was part of the judgment of conviction.
“No appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” (People v Pagan, 19 NY3d 368, 370 [2012] [internal quotation marks and citation omitted]). As relevant here, CPL 450.10 authorizes a defendant to appeal only from a judgment rendered in a criminal case (see People v Smith, 15 NY3d 669, 673 [2010]). “A judgment is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence” (id. [internal quotation marks and citation omitted]). For the reasons stated below, the forfeiture, which defendant asks us to vacate, was not part of his guilty plea or his sentence. Accordingly, it was not part of a judgment of conviction within the contemplation of CPL 1.20 (15) and 450.10.
As demonstrated by the minutes, the forfeiture was not mentioned at all during defendant’s January 11, 2011 plea colloquy. Therefore, it could not have been part of the plea. Nor was the forfeiture part of the January 26, 2011 sentence since it was not included as part of the court’s pronouncement of sentence. CPL 380.20 and 380.40 (1) collectively require that courts pronounce sentence in every case where a conviction is entered (see People v Sparber, 10 NY3d 457, 470 [2008]). This
“[PROSECUTOR]: People rely on the promise. I believe forfeiture was part of the agreed upon sentence.
“[DEFENSE COUNSEL]: It was not.
“[THE COURT]: I don’t recall.
“[DEFENSE COUNSEL]: Based on my memory and file that was never discussed.
“[THE COURT]: What is the amount?
“[PROSECUTOR]: Thirty four thousand five hundred dollars.
“[THE COURT]: Pretty significant.
“[DEFENSE COUNSEL]: Can I have the forfeiture agreement?
“[PROSECUTOR]: Yes.
“[DEFENSE COUNSEL]: Judge, I am handing up the executed forfeiture agreement.”
There was no other mention of the forfeiture during the sentencing. The foregoing colloquy does not approach a pronouncement of the forfeiture as part of the sentence as required under CPL 380.20 and 380.40 (1). For this reason and because of its omission from the plea colloquy, the forfeiture is not part of the judgment of conviction. Also, the fact that the stipulation apparently did not surface and was not executed until the sentencing date further refutes any argument that it was a condition of the plea. Moreover, the stipulation contains no reference to, let alone a recital that it was to be made part of defendant’s sentence. The majority posits that “the court’s so-ordering of the stipulation at the time of sentencing rendered it part of the judgment of conviction.” However, the majority stops short of attributing the forfeiture to either the plea or the sentence. By operation of CPL 1.20 (15) and 450.10, it must be part of one or both to be appealable as of right.
This case is controlled by People v Abruzzese (30 AD3d 219 [1st Dept 2006], lv denied 7 NY3d 784 [2006]) in which we dismissed an appeal on the ground that the forfeiture in that case was not part of the judgment of conviction. To be specific, in Abruzzese, we dismissed a “[p]urported appeal from [a] for
Administrative Code of the City of New York § 10-601 et seq.
