PEOPLE v. HOOVER (2024)

Judgments, Supreme Court, New York County (Patricia Nunez, J., at pleas;  Guy H. Mitchell, J., at sentencing), rendered November 7, 2018, as amended November 30, 2018 and February 13, 2019, convicting defendant of three counts of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 31/212 to 7 years under Indictment No. 151/2018, to run consecutively to concurrent terms of 31/212 to 7 years under SCI 2640/2018, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentences to a term of 2 to 4 years on each count, running concurrently, and otherwise affirmed.

Defendant's waiver of the right to appeal was invalid.  The oral colloquy, even considered in light of the written waivers, did not demonstrate that defendant had a “full appreciation of the consequences” of the waiver (People v. Thomas, 34 N.Y.3d 545, 560, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]).  The court insufficiently apprised defendant of the nature of the appellate rights being waived, misleadingly informed defendant that the waiver rendered his sentences final, and failed to ascertain that defendant understood or had an opportunity to discuss with counsel the written waivers (see People v. Bonilla, 211 A.D.3d 614, 614–615, 180 N.Y.S.3d 162 [1st Dept. 2022]).

Defendant pleaded guilty in exchange for an opportunity to participate in a drug treatment program, completion of which would result in vacatur of his guilty pleas and dismissal of both instruments.  According to the plea agreements, if defendant failed to successfully complete treatment and was not rearrested, he faced an aggregate sentence of 2 to 4 years under each instrument, with the terms to run consecutively to each other.  The agreements also stated that the maximum sentence permitted was consecutive terms of 31/212 to 7 years.  During the plea proceeding, the court explained the plea terms to defendant, and added that if defendant were rearrested, there were “no promises,” and defendant could face the maximum sentence of consecutive terms of 31/212 to 7 years.  At sentencing, after defendant's rearrest for a new offense, the prosecutor incorrectly represented that consecutive terms of 31/212 to 7 years was the “promised sentence,” and the court sentenced defendant accordingly.  By failing to raise any objections, defendant did not preserve his challenge to the sentences (CPL 470.05[2]).

However, based on our own interest of justice powers (CPL 470.15[6][b];  People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 [1992]), we reduce the sentence to a term of 2 to 4 years under Indictment No. 151/2018, to run concurrently to concurrent terms of 2 to 4 years under SCI 2640/2018, for an aggregate term of 2 to 4 years.

In view of the foregoing, we need not reach defendant's remaining contentions.