PEOPLE v. BURTON (2026)

Judgment, Supreme Court, New York County (Ellen N. Biben, J.), rendered January 8, 2020, convicting defendant, upon his plea of guilty, of predatory sexual assault, robbery in the first degree as a sexually motivated felony, burglary in the first degree as a sexually motivated felony, criminal possession of a weapon in the second degree, attempted robbery in the first degree, and burglary in the first degree, and sentencing him to an aggregate term of 10 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharges and fees imposed on defendant at sentencing, and otherwise affirmed.

Defendant voluntarily pleaded guilty based on the totality of the circumstances (see People v. Conceicao, 26 NY3d 375, 382–383 [2015] [“(a)mong other factors, we evaluate the seriousness of the crime, the competency, experience and actual participation by counsel, (and) the rationality of the plea bargain”] [internal quotation marks and emendations omitted] ).  Although “inaccurate information about ․ sentencing exposure” is one circumstance the Court must consider when ruling on a motion to withdraw a guilty plea (People v. Scott, 44 NY3d 302, 314 [2025] ), an overstatement of the maximum potential penalty is “not necessarily dispositive,” and a court must consider the significance of such misinformation (see People v. Joseph, 191 AD3d 148, 150 [1st Dept 2020], lv denied 36 NY3d 1121 [2021] ).  Here, defendant relies on a single piece of alleged misinformation – that he was told he would be exposed to a maximum sentence of 75 years to life if convicted at trial when, in fact, there was a possibility of receiving parole in approximately 68 years.  However, that possibility is a function of credit for “good time” off.  Furthermore, nothing in the record supports the inference that the approximately 23–year–old defendant, who opted for a guilty plea to the minimum sentence, when the likely alternative was incarceration until he was 95 years old, would have proceeded to trial if he believed that if he lost, his incarceration could conclude when he was 88 years old.  This is especially true given the overwhelming evidence of guilt.

Nothing counsel said when apprising the court that defendant was challenging the validity of his plea can reasonably be understood as taking a position adverse to that of defendant (see People v. Mitchell, 21 NY3d 964, 967 [2013] ).  Further, defendant's due process rights were not violated given that he was not curtailed in making his argument that the plea was involuntary (see People v. Bruchanan, 37 AD3d 169, 169 [1st Dept 2007], lv denied 8 NY3d 982 [2007] ).

Based on our own interest of justice powers and the People's consent, we vacate the surcharge and fees imposed at sentencing (see People v. Adames, 216 AD3d 519, 519 [1st Dept 2023], lv denied 40 NY3d 949 [2023];  People v. Chirinos, 190 AD3d 434, 435 [1st Dept 2021] ).