PEOPLE v. COLLIER (2010)

Appeal, by permission, from an order of the County Court of Albany County (Breslin, J.), entered August 19, 2009, which denied defendant's motion pursuant to CPL 440.10 and 440.20 to vacate the judgment convicting him of the crime of robbery in the first degree (two counts) and to set aside the sentence, without a hearing.

In 2005, defendant was charged in an indictment with five counts of robbery in the first degree.   In full satisfaction thereof, he pleaded guilty to counts 1 and 5 and was sentenced, in accordance with the negotiated plea agreement, to consecutive prison terms of 25 years and five years, respectively.   Both sentences also included a five-year period of postrelease supervision.   In 2006, the Department of Correctional Services informed County Court that the five-year sentence was statutorily impermissible because Penal Law § 70.04(3)(a) requires that a determinate sentence for a second violent felony offender convicted of a class B felony be at least 10 years.   Defendant has yet to be resentenced and, on his direct appeal in 2008, we found defendant's lone assertion—that the imposed sentences were harsh and excessive—to be precluded by his valid waiver of appeal, and affirmed the judgment of conviction (52 A.D.3d 1121, 1122, 862 N.Y.S.2d 387 [2008], lv. denied 11 N.Y.3d 786, 866 N.Y.S.2d 613, 896 N.E.2d 99 [2008] ).

Subsequently, defendant moved pursuant to CPL article 440 to vacate the judgment of conviction and to set aside the sentence, arguing that he should be permitted to withdraw his plea because of the illegality of the sentence on count 5 of the indictment.   County Court, noting that defendant had been sentenced as a second felony offender rather than as a second violent felony offender, denied the motion without a hearing on the basis that defendant failed to raise the issue on his direct appeal.   This appeal ensued.

 The sentence imposed is illegal even if defendant is considered a second felony offender.   The minimum available prison term for a second felony offender sentenced for a class B violent felony offense is eight years (see Penal Law § 70.06[6][a] ).¹  Further, a motion to set aside a sentence pursuant to CPL 440.20 is not barred by the failure to raise the issue of illegality on the direct appeal (see People v. McCants, 15 A.D.3d 892, 893, 15 A.D.3d 892 [2005] ).²  Inasmuch as an illegal sentence cannot stand, and “the entire sentence is ‘part and parcel of the plea bargain,’ it must be vacated in its entirety regardless of whether portions of the sentence are legal” (People v. Sheils, 288 A.D.2d 504, 505, 732 N.Y.S.2d 269 [2001], lv. denied 97 N.Y.2d 733, 740 N.Y.S.2d 707, 767 N.E.2d 164 [2002], quoting People v. Sellers, 222 A.D.2d 941, 941, 635 N.Y.S.2d 773 [1995];  see People v. Ciccarelli, 32 A.D.3d 1175, 1176, 822 N.Y.S.2d 186 [2006];  People v. Martin, 278 A.D.2d 743, 744, 718 N.Y.S.2d 445 [2000] ).   Accordingly, we remit to County Court to either resentence defendant in a manner that ensures that he receives the benefit of his sentencing bargain or permit both parties the opportunity to withdraw from the plea agreement (see People v. Cameron, 83 N.Y.2d 838, 840, 611 N.Y.S.2d 499, 633 N.E.2d 1103 [1994];  People v. Warren, 74 A.D.3d 1639, 1640, 902 N.Y.S.2d 826 [2010];  see generally People v. Selikoff, 35 N.Y.2d 227, 240–242, 360 N.Y.S.2d 623, 318 N.E.2d 784 [1974];  People v. Surdis, 23 A.D.3d 841, 842–843, 805 N.Y.S.2d 433[2005], lv. denied 6 N.Y.3d 818, 812 N.Y.S.2d 458, 845 N.E.2d 1289 [2006];  People v. Sheils, 288 A.D.2d at 505–506, 732 N.Y.S.2d 269;).

ORDERED that the order is modified, on the law, by vacating defendant's sentence;  matter remitted to the County Court of Albany County for further proceedings not inconsistent with this Court's decision;  and, as so modified, affirmed.

FOOTNOTES

1.   In any event, we note that classification as a second violent felony offender is mandatory (see CPL 400.15[1], [2];  People v. Scarbrough, 66 N.Y.2d 673, 674, 496 N.Y.S.2d 409, 487 N.E.2d 266 [1985], revg. on dissenting mem of Boomer, J., 105 A.D.2d 1107, 1107–1109, 482 N.Y.S.2d 197 [1984];  People v. Nix, 71 A.D.3d 1505, 1505–1506, 895 N.Y.S.2d 904 [2010], lv. denied 15 N.Y.3d 754, 906 N.Y.S.2d 827, 933 N.E.2d 226 [2010] ).

2.   To the extent that this Court's prior decisions may be read to preclude a CPL 440.20 motion where the illegality of the sentence could have been raised on a direct appeal (see People v. Pratt, 23 A.D.3d 770, 771, 803 N.Y.S.2d 778 [2005], lv. dismissed 6 N.Y.3d 816, 812 N.Y.S.2d 456, 845 N.E.2d 1287 [2006];  People v. O'Hanlon, 13 A.D.3d 718, 719, 785 N.Y.S.2d 795 [2004];  People v. Pham, 287 A.D.2d 789, 790, 731 N.Y.S.2d 254 [2001] ), they should not be followed.

ROSE, J.P.

LAHTINEN, STEIN, McCARTHY and GARRY, JJ., concur.