People v Sparber

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[*1] People v Sparber 2008 NY Slip Op 51737(U) [20 Misc 3d 1135(A)] Decided on August 13, 2008 Supreme Court, New York County Conviser, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 13, 2008
Supreme Court, New York County

The People of the State of New York


Daniel Sparber, Defendant.


Daniel P. Conviser, J.

Defendant moves, pursuant to CPL § 220.60(3) to withdraw his previously entered plea of guilty to the crime of Assault in the First Degree as unknowing and involuntary because of the failure of the court during his plea allocution and sentence to pronounce the required post-release supervision (PRS) term. Defendant's plea withdrawal motion is opposed by the People. For the reasons stated below, Defendant's motion to withdraw his previously entered plea of guilty is denied and the case is adjourned for a resentencing hearing so that an appropriate sentence with a lawfully imposed PRS term can be pronounced.


On January 7, 2002, Daniel Sparber pled guilty to Assault in the First Degree with a promised determinate sentence of imprisonment of 15 years. He was also adjudicated on that date as a second violent felony offender. Mr. Sparber appeared for sentencing on April 11, 2002. As a consequence of his guilty plea and his adjudicated status as a second violent felony offender, Mr. Sparber, in addition to his 15 year determinate sentence, was also required by law to be sentenced to a period of post-release supervision (PRS) of 5 years. Penal Law §§ 70.00(6); 70.45(2).

At sentencing, the trial judge pronounced the length of the determinate term of imprisonment, but did not mention that the Defendant would be subject to any term of post-release supervision. The case worksheet, initialed by the judge, also did not note that any post-release supervision term would be imposed. The clerk-prepared commitment sheet sent to the Department of Corrections, however, noted in its "remarks" section that the Defendant was required to serve a post-release supervision term of 5 years. See People v. Sparber, 10 NY3d 457 (2008).

Defendant appealed his sentence, arguing that because the period of post-release supervision which had been imposed as a part of his sentence was not pronounced orally in his presence in open court, that portion of the sentence was a nullity. The Appellate Division, First Department rejected Defendant's claim, holding that Defendant's sentence necessarily included a five year period of post-release supervision by operation of law, even though that portion of the sentence had not been pronounced orally at the time of the Defendant's sentence. Further, the Court held that since the post-release supervision term was included in the court commitment [*2]sheet, any constitutional requirement that the court's sentence be entered on the records of the court had been satisfied. People v. Sparber, 34 AD3d 265 (1st Dep't 2006).

The Appellate Division noted in its decision, rendered on November 9, 2006, that: "[w]hile the court's failure to advise defendant of the PRS component of his sentence would be a ground for vacatur of the plea (People v.Van Deusen, 7 NY3d 744 [2006]; People v. Catu, 4 NY3d 242 [2005]), defendant explicitly states that he does not want that remedy." 34 AD3d at 265 (emphasis added).

Defendant appealed to the Court of Appeals which modified the Appellate Division's determination [FN1]. The Court of Appeals noted that under its precedents, a court sentencing a defendant to a sentence which included a PRS term was required to advise a defendant of that sentence condition during any plea colloquy and was required to pronounce the PRS term at sentencing. The Court also noted that the remedy for a violation of the requirement that a defendant be advised of any PRS term during a plea would be a vacatur of the defendant's plea. The Court of Appeals noted, however, as had the Appellate Division, that this plea vacatur remedy had been "expressly disavowed" by Mr. Sparber. 10 NY3d at 466.

The Court held that in the absence of a plea vacatur, the proper remedy was to remit the case to the trial court for resentencing so that the proper PRS term could be pronounced.[FN2] The Court held, inter alia, that striking the PRS term "would leave defendants with a windfall that greatly exceeds any harm that they have purportedly suffered." 10 NY3d at 469. The Court also issued explicit directions to this Court on remittur, holding that the order of the Appellate Division should be affirmed but modified "by remitting to the Supreme Court for a resentencing hearing that will include the proper pronouncement of the relevant PRS term." 10 NY3d at 473. In summing up its directions to the trial courts in the cases at issue in Sparber, the Court held that: "[t]he sentencing courts did err here, but that error can be remedied through resentencing. Nothing more is required." 10 NY3d at 469.

On June 4, 2008, the parties in Sparber appeared for the first time before this Court pursuant to the Court of Appeals remittur order. At that time, Defendant raised a number of issues. He asked that the Court exercise its "inherent authority" to decline to impose a period of post-release supervision on Mr. Sparber or, alternatively, shorten Mr. Sparber's previously imposed determinate sentence of imprisonment. Defendant also argued that any resentencing of Mr. Sparber was barred by principles of double jeopardy.

The Court indicated its view that consideration of these claims was foreclosed by the [*3]explicit remittur directive of the Court of Appeals. Defendant then indicated that given the fact that this Court was inclined to proceed to a resentencing hearing as directed by the Court of Appeals, Mr. Sparber wished to withdraw his previously entered guilty plea to the crime of Assault in the First Degree. The Court asked Defendant to brief the issue of whether Mr. Sparber was entitled to withdraw his plea at this juncture. On June 13, 2008, pursuant to the Court's request, Defendant submitted a written motion seeking to withdraw his guilty plea.


It is clear that because the Defendant was not advised of the fact that he would be subject to a mandatory 5 year PRS term either at the time he pled guilty or the time he was sentenced, that he was entitled on direct appeal to vacate his plea. People v. Catu, 4 NY3d 242 (2005); People v. Hill, 9 NY3d 189 (2007). The sole question here is whether having explicitly disavowed that right throughout his appeals to the Appellate Division and the Court of Appeals the Defendant may now, on remittur, six years after the PRS term was unlawfully included in his sentence, seek for the first time to vacate his plea. Put another way, the question is whether the fact that the Defendant explicitly disavowed any intention to withdraw his plea of guilty on direct appeal mean that on remittur he has waived any right he had to seek such a plea withdrawal. In the view of this Court, the Defendant has waived that right and Defendant's motion must therefore be denied.

Defendant's motion here arises in an anomalous procedural context. Defendant is moving here, as noted above, pursuant to CPL § 220.60(3). That statute allows a defendant to move to withdraw a guilty plea before sentencing. Here, the Defendant was sentenced, as noted supra, in 2002 but this case has been remitted to this Court for a resentencing which has not yet occurred. Thus, Defendant has arguably moved timely under the literal terms of CPL § 220.60(3).

It is also clear, however, that Defendant has exhausted his direct appeals and in any event has brought this motion before the trial court rather than an appellate court. Thus, the claim he is raising here is not a claim on direct appeal. But it is also not, arguably, a claim pursuant to CPL § 440.10. That statute requires that a judgment have been entered. A judgment is composed of a conviction and a sentence and "is completed by imposition and entry of the sentence." CPL § 1.20(15). Given that this case is before this Court for resentencing, a valid sentence has not yet been entered.

The Court agrees with the People's contention here, however, that Defendant's motion is the "functional equivalent" of a CPL § 440.10 motion. It is a motion to the trial court following the exhaustion of Defendant's direct appeals alleging that the judgment convicting the Defendant was obtained in violation of his rights. Thus, in the view of this Court, the principles applicable to CPL § 440.10 plea vacatur motions can be looked to for guidance in determining this motion.In People v. Louree, 8 NY3d 541 (2007), the Court of Appeals held that a defendant who is not advised of a required PRS term during a plea allocution but is advised of PRS at sentencing may challenge the validity of their plea on direct appeal even though no such challenge was made prior to the Defendant's sentencing. The Court noted that normally, a motion to withdraw a plea would have to be made prior to sentencing pursuant to CPL § 220.60(3) or pursuant to a motion to vacate the judgment of conviction pursuant to CPL § 440.10. The Court explained that an exception to that rule existed in the "rare case" where, for example, a defendant's factual recitation during a plea negated an essential element of a crime. 8 [*4]NY3d at 545, citing People v. Lopez, 71 NY2d 662, 666 (1988).

The Court in Louree based its decision on the practical impossibility for the Defendant of pursuing his right to vacate his plea through any other means than a direct appeal. Relief under CPL § 220.60 was not available, the Court reasoned, because that relief would have to be requested prior to sentencing and prior to sentencing the Defendant had not been informed that he would be subject to PRS. Similarly, the Court held, relief pursuant to CPL § 440.10 was not available because the ground raised was clear on the face of the record and therefore precluded relief under CPL § 440.10 [FN3].

The Court also explicitly ruled, in a footnote, that a Catu claim, seeking the vacatur of a defendant's plea, could not be raised by a defendant by way of a motion pursuant to CPL§ 440.10. 8 NY3d at 546, n.1. In People v. Boyd, 51 AD3d 325, 330 (1'st Dep't 2008), the Court went further in articulating the necessary consequences of that procedural bar by explicitly stating that: "[w]here, as here, the omission complained of [the failure to advise a defendant of the full terms of a PRS sentence during a plea allocution] is apparent from the face of the record, the defendant is required to assert the issue on appeal, not by way of motion under CPL 440" (emphasis added). Boyd articulates the general rule applicable to CPL § 440.10 motions based on purported deficiencies in plea allocutions: "[w]hen, as will usually be the case, sufficient facts appear on the record to permit the question to be reviewed, sufficiency of the plea allocution can be reviewed only by direct appeal." People v. Angelakos, 70 NY2d 670, 672 (1987), quoting People v Cooks, 67 NY2d 100, 104 (emphasis added).

A necessary exception to the rule that a Catu violation must be pursued on direct appeal and may not be brought pursuant to a CPL § 440.10 motion has arisen in cases where a defendant does not become aware of the fact that an unlawful PRS term has been imposed until his or her direct appeals have been exhausted or time barred. Thus, in Hill, supra, while not explicitly addressing the issue, the Court of Appeals granted defendant's motion for a Catu plea vacatur even though the motion was brought pursuant to CPL § 440.10 after defendant's time to appeal had expired. See People v. Harris, 19 Misc 3d 1137(A) (Westchester County Supreme Court, May 16, 2008 [Adler, J.]) (Court in Hill tacitly acknowledged that Louree 440.10 bar is not applicable where defendant has no knowledge of unlawful PRS term prior to the expiration of his time to appeal). See also, People v. Powless, 46 AD3d 1350 (4'th Dep't 2007), leave to appeal denied, 100 NY2d 586 (CPL § 440.10 motion to vacate plea for Catu violation granted where defendant did not become aware of PRS violation until after direct appeal decided). These holdings reflect the common sense view that it would be obviously inequitable to hold that a defendant had waived a right to seek the vacatur of an unlawfully imposed PRS term when the [*5]defendant had no knowledge that such a term had been imposed.

It is undisputed that in this case, the Defendant at no time moved to vacate his plea, either prior to his sentencing or during his direct appeals. It is also clear that the Defendant was aware throughout his appeals that an unlawful PRS term had been imposed, aware that he had the right to withdraw his plea on that basis and explicitly declined to avail himself of that right at any time during those appeals. Thus, under the terms of the cases cited supra, Defendant is barred from seeking that relief now.

Defendant argues that he "has not been in a position to raise the issue [of PRS] because PRS has not been part of his sentence." See Memorandum of Law of David J. Klem, Attorney for Defendant, June 13, 2008 at 7. Rather, Defendant argues, on direct appeal he simply sought the sentence he was promised a determinate term of 15 years without post-release supervision. Mr. Sparber "could not ask for plea withdrawal [on direct appeal] . . . without jeopardizing his right to seek the benefit of his bargain." Id. at 8. It is only at this juncture, argues the Defendant, when for the first time the Defendant is faced with the prospect of having a PRS term lawfully pronounced at a sentencing, that he is in a position to withdraw his plea.

The Court finds these arguments unavailing. It is true that since PRS was not lawfully pronounced at sentence, Defendant's sentence did not include a PRS term. Thus, it might be argued, as a technical matter, there was no basis in the record through which the Defendant could argue on a direct appeal that his sentence had been unlawfully imposed. Yet both the Appellate Division and the Court of Appeals in this case explicitly indicated that the Defendant had the right to pursue a plea vacatur remedy on direct appeal and the Defendant obviously was put on notice that he had that right throughout his direct appeal proceedings. In the view of this Court, the argument that he was not in a proper procedural position to seek plea vacatur on direct appeal, when the appellate courts explicitly indicated to him that he had that right, is unpersuasive.

As a practical matter, the Defendant has had a period of six years in which to move to vacate his plea. If Defendant preferred the remedy he initially sought - the striking of the unlawfully imposed PRS term, to the remedy he seeks now, plea vacatur, he could also have easily moved in the alternative asking first that his unlawful PRS term be excised and failing that, that he be allowed to withdraw his plea. The varying factual contexts in which courts have held that defendants have or have not waived Catu claims reflect the common-sense notion that a defendant will not be barred from raising such a claim, regardless of the procedural context in which any such claim arises, where they did not have a previous opportunity to do so. Conversely, where a defendant has had such an opportunity and failed to avail himself of it, as occurred here, the claim will be held to have been waived.

What Defendant seeks at this juncture, in this Court's view, is less the benefit of a bargain than an unjustified windfall. More than six years after his conviction by plea of guilty to the crime of Assault in the First Degree, it may well be difficult or impossible, given the passage of time, for the People to now proceed to try Mr. Sparber. Knowing this, the practical result of granting Defendant's motion would likely simply be that the People would then be forced to agree that Mr. Sparber would not be subject to resentencing and that the lawful required PRS term would not be imposed. That is, the likely practical result of granting the Defendant's motion would be to do exactly the opposite of what the Court of Appeals directed this Court to do [*6]conduct a resentencing hearing at which the required PRS term would be imposed. Although defendants must be given an appropriate opportunity to contest legal errors in proceedings, "the very real interest of the State in achieving finality in a criminal prosecution mandates that such objections be timely raised." Lopez supra, 71 NY2d at 665, quoting People v. Michael, 48 NY2d 1, 6.

As a legal matter, as noted above, Defendant was required to pursue his plea vacatur motion on direct appeal. See Louree, supra; Boyd, supra. He did not do that. The Court of Appeals remittur directive to this Court, moreover to conduct a resentencing hearing at which a lawful PRS term is pronounced is not equivocal, discretionary or ambiguous in any way. For all of these reasons, Defendant's motion to vacate his plea is denied.

This case is adjourned to the previously scheduled adjourned date of September 16th, 2008. On that date, the parties should be prepared to proceed with a resentencing hearing at which a proper PRS term shall be pronounced.

Dated: New York, New York________________________

August 13, 2008Daniel P. Conviser, A.J.S.C.


Footnote 1: The Court of Appeals decision, cited supra, involved appeals in five separate cases in which violations of the requirement that the PRS term be pronounced occurred in varying factual contexts. Only the issues relevant to the Sparber matter (the lead captioned case in the decision) are discussed here.

Footnote 2: Defendant Sparber was originally sentenced in New York County Supreme Court before the Honorable Herbert I. Altman. Justice Altman subsequently left the Supreme Court bench and now serves as a Judicial Hearing Officer in New York County. Upon the remittur of this matter to the New York County Supreme Court, the case was assigned to this Court for further proceedings.

Footnote 3: The Court reached a contrary result, barring a defendant from raising a Catu claim on direct appeal where the claim had not been asserted at sentencing under the unique facts in People v. Padilla, 50 AD3d 928 (2d Dep't 2008). There, the Defendant during his plea allocution was promised an unlawful PRS term of 3 years. When it was pointed out at sentencing that the PRS term was a required period of 5 years, the Defendant and his counsel were given the opportunity to address the Court but declined to do so. Since the Defendant was put on notice of the required 5 year PRS term immediately prior to sentencing and failed to raise any objection, the Court held, any Catu claim was waived and could not be raised on appeal.

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