PEOPLE v. BREWINGTON (2018)

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the Supreme Court (Milano, J.), rendered August 5, 2015 in Schenectady County, convicting defendant upon his plea of guilty of the crime of burglary in the second degree, and (2) from a judgment of said court, rendered April 26, 2016 in Schenectady County, which resentenced defendant.

The pertinent facts are largely set forth in prior decisions of this Court on appeals from judgments of conviction rendered in this matter in Schenectady County (129 A.D.3d 1115, 10 N.Y.S.3d 365 [2015] ) and in Albany County (People v. Brewington, 149 A.D.3d 1418, 1418, 53 N.Y.S.3d 711 [2017];  People v. Brewington, 127 A.D.3d 1248, 8 N.Y.S.3d 439 [2015] ).  Briefly, defendant pleaded guilty to burglary in the second degree in this matter and separately pleaded guilty to two counts of burglary in the second degree in Albany County.  Defendant was adjudicated a persistent violent felony offender in both matters and, in this matter, Supreme Court sentenced him to the agreed-upon term of 18 years to life in prison.  Supreme Court further agreed to, and did, make the sentence run concurrently to the aggregate prison term of 161/212 years to life imposed in Albany County (129 A.D.3d at 1115, 10 N.Y.S.3d 365;  People v. Brewington, 127 A.D.3d at 1248, 8 N.Y.S.3d 439).

Defendant successfully challenged his persistent violent felony offender status upon appeals from both judgments, resulting in vacatur of the sentences and remittal (129 A.D.3d at 1115, 10 N.Y.S.3d 365;  People v. Brewington, 127 A.D.3d at 1248–1249, 8 N.Y.S.3d 439).  Upon remittal, defendant was sentenced to an aggregate prison term of 20 years and postrelease supervision in Albany County.  Supreme Court, in turn, sentenced defendant to a concurrent prison term of 15 years, and then resentenced him so that a needed term of postrelease supervision could be imposed (see Correction Law § 601–d).  Defendant now appeals from the judgments entered upon sentencing and resentencing.

We reverse.  Defendant pleaded guilty here upon the understanding that the imposed sentence would run concurrently to the aggregate prison sentence of 161/212 years to life imposed in Albany County.  He was also aware that a higher aggregate sentence would be imposed in Albany County if he successfully challenged his status as a persistent violent felony offender, and Supreme Court promised that any resentence in this case would run concurrently to that increased sentence.

During the pendency of this appeal, this Court reversed the judgment of conviction in Albany County, vacated defendant's guilty plea and remitted for further proceedings (People v. Brewington, 149 A.D.3d at 1418–1419, 53 N.Y.S.3d 711).  The sentencing exposure that prompted defendant's concern about concurrent sentencing here accordingly dissolved and, indeed, he entered into a new plea arrangement in Albany County where he received, among other things, a much shorter prison term of six years.  In short, the “reduction of the preexisting sentence [in Albany County] nullified a benefit that was expressly promised and was a material inducement to the guilty plea” here (People v. Rowland, 8 N.Y.3d 342, 345, 834 N.Y.S.2d 58, 865 N.E.2d 1224 [2007];  see People v. Pichardo, 1 N.Y.3d 126, 129, 769 N.Y.S.2d 791, 802 N.E.2d 141 [2003];  People v. Price, 113 A.D.3d 883, 885, 978 N.Y.S.2d 409 [2014] ).  Inasmuch as “we cannot say that defendant would have foregone pretrial and trial rights and pleaded guilty” had he known that his guilty plea in Albany County would be vacated, his plea must also be vacated here (People v. Pichardo, 1 N.Y.3d at 130, 769 N.Y.S.2d 791, 802 N.E.2d 141;  see People v. Rowland, 8 N.Y.3d at 345, 834 N.Y.S.2d 58, 865 N.E.2d 1224;  People v. Price, 113 A.D.3d at 885, 978 N.Y.S.2d 409).  Defendant's remaining claim with respect to the severity of the sentence imposed is academic.

ORDERED that the judgments are reversed, on the law, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.

Devine, J.

Lynch, J.P., Mulvey, Aarons and Pritzker, JJ., concur.