PEOPLE v. BELCHER CUMBA (2022)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Northrup Jr., J.), rendered October 14, 2016, convicting defendant upon his plea of guilty of the crime of attempted robbery in the first degree.

Defendant was indicted and charged with robbery in the first degree, criminal possession of a weapon in the second degree (four counts), criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree.  In full satisfaction of that indictment, defendant subsequently pleaded guilty to the reduced charge of attempted robbery in the first degree with the understanding that he would be sentenced – as a second felony offender – to a prison term of nine years followed by five years of postrelease supervision.  Following a brief adjournment at defendant's request, defendant was sentenced in accordance with the plea agreement.  This appeal ensued.

Absent evidence of an appropriate postallocution motion, defendant's challenge to the voluntariness of his plea is unpreserved for our review (see People v. Blankenbaker, 197 A.D.3d 1353, 1354, 150 N.Y.S.3d 631 [2021];  People v. Brewster, 194 A.D.3d 1266, 1267, 144 N.Y.S.3d 402 [2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 690, 172 N.E.3d 802 [2021]), and the narrow exception to the preservation requirement was not triggered here, “as the record does not reflect that defendant made any statements that cast doubt upon his guilt, negated an element of the crime[ ] or called into question the voluntariness of his plea” (People v. Brewster, 194 A.D.3d at 1267, 144 N.Y.S.3d 402;  see People v. Guerrero, 194 A.D.3d 1258, 1260, 147 N.Y.S.3d 264 [2021], lv denied 37 N.Y.3d 992, 152 N.Y.S.3d 412, 174 N.E.3d 352 [2021]).  Defendant's related claim – that the statements embodied in his pro se motion imposed a duty of inquiry upon County Court – is unpersuasive, as defendant failed to reiterate such representations during the course of the plea colloquy (see People v. Sosa, 172 A.D.3d 432, 433, 99 N.Y.S.3d 303 [2019];  People v. Rodriguez, 144 A.D.3d 498, 499, 40 N.Y.S.3d 429 [2016], lv denied 28 N.Y.3d 1188, 52 N.Y.S.3d 714, 75 N.E.3d 106 [2017];  People v. Sands, 45 A.D.3d 414, 415, 845 N.Y.S.2d 326 [2007], lv denied 10 N.Y.3d 816, 857 N.Y.S.2d 49, 886 N.E.2d 814 [2008];  compare People v. Ramirez, 42 A.D.3d 671, 672, 839 N.Y.S.2d 327 [2007]), and we decline defendant's invitation to take corrective action in the interest of justice.

We do, however, find merit to defendant's claim that he was not properly sentenced.  “CPL 380.20 requires that courts must pronounce sentence in every case where a conviction is entered.  When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme” (People v. Childs, 186 A.D.3d 500, 500, 126 N.Y.S.3d 411 [2020] [internal quotation marks and citations omitted];  see People v. Sparber, 10 N.Y.3d 457, 471, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008];  People v. Tyrek M., 183 A.D.3d 915, 915–916, 122 N.Y.S.3d 549 [2020]).  This statutory requirement is “unyielding” (People v. Sparber, 10 N.Y.3d at 469, 859 N.Y.S.2d 582, 889 N.E.2d 459).  Here, although the term of imprisonment was recited – on the record and more than once – at the time of sentencing, County Court “did not pronounce the length of the term of [imprisonment] in open court” (People v. Jemmott, 184 A.D.3d 586, 586–587, 122 N.Y.S.3d 909 [2020];  cf.  People v. Tyrek M., 183 A.D.3d at 915–916, 122 N.Y.S.3d 549;  People v. Cleveland, 177 A.D.3d 1382, 1383, 110 N.Y.S.3d 607 [2019]).  Accordingly, the judgment of conviction is modified by vacating the sentence imposed, and this matter is remitted to County Court for resentencing (see People v. Brady, 195 A.D.3d 1545, 1546, 145 N.Y.S.3d 900 [2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 689, 172 N.E.3d 801 [2021];  People v. Disotell, 123 A.D.3d 1230, 1232, 999 N.Y.S.2d 240 [2014], lv denied 25 N.Y.3d 1162, 15 N.Y.S.3d 294, 36 N.E.3d 97 [2015]).  Contrary to defendant's assertion, “the delay in resentencing defendant following [the] sentencing that failed to conform to CPL 380.20 does not divest the court of jurisdiction” (People v. Bryan, 231 A.D.2d 957, 957, 647 N.Y.S.2d 903 [1996], lv denied 89 N.Y.2d 862, 653 N.Y.S.2d 285, 675 N.E.2d 1238 [1996];  see generally People v. Peoples, 159 A.D.3d 946, 947, 73 N.Y.S.3d 585 [2018], lv denied 31 N.Y.3d 1151, 83 N.Y.S.3d 433, 108 N.E.3d 507 [2018];  see also People v. Siler, 107 A.D.3d 1242, 1243, 967 N.Y.S.2d 773 [2013], lv denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013]).  Nor does the delay warrant dismissal of the applicable count of the indictment (see People v. Benson, 265 A.D.2d 814, 816, 697 N.Y.S.2d 222 [1999], lv denied 94 N.Y.2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097 [1999], cert denied 529 U.S. 1076, 120 S.Ct. 1694, 146 L.Ed.2d 499 [2000]).  Defendant's remaining contentions are either academic or lacking in merit.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed;  matter remitted to the County Court of Broome County for resentencing;  and, as so modified, affirmed.

Garry, P.J.

Lynch, Pritzker and Colangelo, JJ., concur.