PEOPLE v. REGAN (2021)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered June 17, 2019, convicting defendant upon his plea of guilty of the crime of unlawful manufacture of methamphetamine in the third degree.

Defendant was indicted and charged with one count of unlawful manufacture of methamphetamine in the third degree.  After initially rejecting certain plea offers, defendant agreed to plead guilty to the charged crime with the understanding that he would be sentenced to a prison term of 41/212 years followed by two years of postrelease supervision – together with a judicial mandate that defendant be enrolled in a shock incarceration program.  The plea agreement, which acknowledged that defendant would be sentenced as a second felony drug offender with a prior violent felony conviction, also required defendant to waive his right to appeal.  Defendant pleaded guilty in conformity with the plea agreement, and the matter was adjourned for sentencing.  After reassuring defendant that he would be placed in shock incarceration or a similar program, County Court imposed the contemplated prison term, and this appeal ensued.

Defendant contends, and the People agree, that the underlying plea is invalid because it was predicated upon a promise that could not legally be fulfilled – namely, defendant's court-ordered participation in a shock incarceration program.  Although this argument implicates the voluntariness of defendant's plea and, hence, survives his unchallenged waiver of the right to appeal, it is unpreserved for our review absent evidence of a postallocution motion (see People v. Lamotte, 184 A.D.3d 907, 907, 125 N.Y.S.3d 500 [2020];  People v. Benson, 100 A.D.3d 1108, 1108–1109, 953 N.Y.S.2d 380 [2012]).  That said, we deem this to be an appropriate instance in which to take corrective action in the interest of justice (see People v. Smith, 160 A.D.3d 1475, 1475, 72 N.Y.S.3d 910 [2018];  People v. Muhammad, 132 A.D.3d 1068, 1069, 18 N.Y.S.3d 461 [2015]).

There is no dispute that, in light of defendant's prior violent felony conviction, he was not in fact eligible for participation in a shock incarceration program (see Penal Law § 60.04[7][a];  Correction Law § 865[1];  7 NYCRR 1800.4[b][1];  People v. Wiggins, 126 A.D.3d 1229, 1231, 4 N.Y.S.3d 404 [2015]).  Nor is there any question that a judicial mandate for shock incarceration was part and parcel of defendant's plea agreement (compare People v. Smith, 160 A.D.3d at 1476, 72 N.Y.S.3d 910, and People v. Muhammad, 132 A.D.3d at 1069, 18 N.Y.S.3d 461, and People v. Wiggins, 126 A.D.3d at 1231, 4 N.Y.S.3d 404, with People v. West, 189 A.D.3d 1822, 1823–1824, 138 N.Y.S.3d 260 [2020], lv dismissed 37 N.Y.3d 975, 150 N.Y.S.3d 683, 172 N.E.3d 795 [2021], and People v. Demick, 138 A.D.3d 1486, 1486, 29 N.Y.S.3d 215 [2016], lv denied 27 N.Y.3d 1150, 39 N.Y.S.3d 384, 62 N.E.3d 124 [2016]).  “A guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” (People v. Collier, 22 N.Y.3d 429, 433, 982 N.Y.S.2d 34, 5 N.E.3d 5 [2013] [internal quotation marks, brackets and citations omitted], cert denied 573 U.S. 908, 134 S.Ct. 2730, 189 L.Ed.2d 770 [2014]).  As the promise made here cannot be honored, and given defendant's insistence that his plea was involuntary, we deem vacatur of the plea and remittal to County Court for further proceedings to be the appropriate remedy (see People v. Smith, 160 A.D.3d at 1476, 72 N.Y.S.3d 910;  People v. Muhammad, 132 A.D.3d at 1069, 18 N.Y.S.3d 461;  People v. Wiggins, 126 A.D.3d at 1231, 4 N.Y.S.3d 404).  In light of this conclusion, defendant's remaining arguments – that he received the ineffective assistance of counsel relative to his eligibility for shock incarceration and that the sentence imposed was harsh and excessive – are academic.

ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and matter remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court's decision.

Reynolds Fitzgerald, J.

Egan Jr., J.P., Lynch, Clark and Aarons, JJ., concur.