People v Keile

[*1] People v Keile 2006 NY Slip Op 51684(U) [13 Misc 3d 1204(A)] Decided on September 5, 2006 Supreme Court, New York County McLaughlin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through September 18, 2006; it will not be published in the printed Official Reports.

Decided on September 5, 2006
Supreme Court, New York County

The People of the State of New York,

against

George Keile, Defendant.



9917-98

Edward J. McLaughlin, J.

BACKGROUND

On September 14, 1999, defendant, a predicate felon, pleaded guilty to two counts of robbery in the first degree. The guilty plea resolved two indictments charging him with having committed eight separate robbery and burglary incidents. In exchange for the guilty plea, this court promised to sentence defendant to 20 years in prison on each count, to be served concurrently with each other and with the sentence imposed under Indictment 1235/99. At the time of the guilty plea, this court did not advise defendant that the promised sentence would include a mandatory period of five years of post-release supervision (see PL 70.45 [2]). On November 9, 1999, this court sentenced defendant as promised. This court did not impose the term of post-release supervision.

In January of 2006, defendant moved pro se pursuant to CPL 440.10 and 440.20 to vacate his guilty plea or modify his sentence on the ground that this court did not inform him, before he had pleaded guilty, that his sentence would include a mandatory period of five years of post-release supervision. Although one part of defendant's motion requests that the judgment of conviction be vacated, the remainder of the motion and memorandum of law ask that defendant be resentenced to a 14-year determinate sentence and five years of post-release supervision.

The District Attorney did not file a written answer to defendant's motion. The District Attorney contacted this court to concede that defendant was entitled to plea withdrawal because this court had failed to advise defendant at the guilty plea that his sentence would include a mandatory term of post-release supervision. The District Attorney, however, opposed defendant's request for resentencing.

This court assigned counsel to represent defendant to ensure that he understood the consequences of vacating the judgment of conviction. Defendant later informed this court, through counsel, that the he did not wish to vacate the judgment of conviction and was seeking only to be resentenced.

LAW

Under New York law, every determinate sentence includes a term of post-release supervision (see PL 70.45 [1]). Regrettably, in some cases, this court and other courts have accepted a guilty plea in exchange for a sentence promise without informing the defendant that [*2]the sentence will include a term of post-release supervision and did not impose post-release supervision at sentencing. In those cases, the Department of Correctional Services enforces that statutory requirement by adding a term of post-release supervision to the defendant's sentence. Numerous defendants, like this defendant, have had a term of post-release supervision added to their determinate sentence in this fashion.

A court's failure to advise the defendant during the guilty plea that the promised sentence will include a term of post-release supervision makes the guilty plea involuntary (see People v Catu, 4 NY3d 242, 245 [2005]). Post-release supervision is a significant consequence of pleading guilty, and the court's failure to advise the defendant about post-release supervision deprives the defendant of information needed to make an informed decision about whether to plead guilty (see People v Van Deusen, 7 NY3d 744, 746 [2006]). If the defendant was not advised about post-release supervision at the guilty plea, the court may not impose post-release supervision at sentencing without giving the defendant an opportunity to withdraw the guilty plea (see id. [sentencing court could not reduce the determinate prison term by the period of post-release supervision instead of granting defendant's request for plea withdrawal]). If the court imposes the promised sentence without referring to post-release supervision, the defendant can move under CPL article 440 to vacate a judgment of conviction and withdraw the guilty plea (see People v Evans, 30 AD3d 1130 [1st Dept 2006]).

In such a case, the defendant has no right to have the sentence modified so that the combined period of imprisonment and post-release supervision does not exceed the promised sentence. The defendant decides when to plead guilty, but the sentencing function belongs to the court, and the court decides what sentence is appropriate in a particular case (see People v Farrar, 52 NY2d 302, 306 [1981]). If the court refuses to impose the sentence promised under the guilty plea, the defendant can either move to withdraw the guilty plea or accept the other sentence that the court intends to impose (id. at 308, n *). The defendant cannot dictate what sentence the court shall impose. Consequently, defendant's motion seeking sentence modification is denied.

The disposition of defendant's motion for resentencing does not resolve all of the legal issues that arise when a court does not formally impose a term of post-release supervision at sentencing. In Earley v Murray (451 F3d 71, 75-76 [2d Cir 2006]), a federal habeas corpus action brought by a state prisoner, the Second Circuit Court of Appeals ruled that federal constitutional law prohibits the Department of Correctional Services from adding a term of post-release supervision to any determinate sentence if the court did not impose such a term at sentencing. The Court reasoned that "the judgment of the court establishes a defendant's sentence, and that sentence may not be increased by an administrator's amendment," and that "any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect" (id. at 75). Under Earley, a term of post-release supervision can be added only by the court at a resentencing proceeding (id. at 76).

The Earley case creates confusion about the legal status of the term of post-release supervision that was added to defendant's sentence by the Department of Correctional Services. If Earley correctly interpreted federal constitutional law, defendant's sentence currently does not include a term of post-release supervision, and he may not be subjected to post-release supervision when he is released from prison, unless this court resentences him before then and [*3]imposes the term of post release supervision that this court neglected to impose on the day of sentencing. But this court's understanding of law is that the defendant cannot be resentenced at this point even though a determinate sentence without a period of post-release supervision would violate state law (see People v Riggins, 164 AD2d 797, 797 [1st Dept 1990] [court lacks inherent power to correct illegal sentence more than two years after sentencing unless court misspoke when imposing sentence]).

This court concludes that the New York appellate courts deserve an opportunity to decide whether to follow Earley (see People v Kin Kan, 78 NY2d 54, 60 [1991] [interpretation of federal constitutional law by a lower federal court is persuasive but not binding authority on New York courts]). Ordinarily, a court must follow its understanding of the law and await an appeal. But this is a unique situation. This defendant, numerous other defendants who have had a term of post-release supervision added to their sentences, the Department of Correctional Services, this court, and other courts need guidance about how to proceed in this situation. Therefore, this court will resentence defendant and impose the mandatory term of five years of post-release supervision that was not imposed at sentencing. This resentencing will expedite appellate review of this issue (see CPL 450.30 [3]).

In proceeding with resentencing, this court notes that defendant will not have to serve any post-release supervision until after his release from prison (see PL 70.45 [5]), which will not occur for almost a decade. By that time, an appellate court will have ruled on the constitutionality of the Department of Correctional Services' practice of adding a period of post-release supervision to any sentence in which the court did not impose it at sentence, and whether a court has inherent power to correct its failure to impose post-release supervision by imposing post-release supervision at a later resentencing.

Dated:September 5, 2006