PEOPLE v. WALKER

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The PEOPLE of the State of New York, Respondent, v. William WALKER, Appellant.

Decided: December 20, 2012

Before: MERCURE, J.P., SPAIN, MALONE JR., STEIN and McCARTHY, JJ. Paul J. Connolly, Delmar, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Appeals (1) from a judgment of the Supreme Court (R. Sise, J.), rendered July 14, 2009 in Ulster County, convicting defendant upon his plea of guilty of the crime of possessing a sexual performance by a child, and (2) by permission, from an order of the County Court of Ulster County (Williams, J.), entered April 15, 2011, which denied defendant's motion pursuant to CPL 440.20 to vacate his sentence, without a hearing.

Defendant waived indictment and was charged by superior court information with possessing a sexual performance by a child. He pleaded guilty to that crime in exchange for a promised sentence of six months in jail. At the time of the plea, County Court (Bruhn, J .) admonished defendant that it would not be bound by the sentencing agreement if defendant did not follow certain rules, namely, “Do not commit any new crimes. Do not get yourself arrested again for any reason.” Shortly after the plea, defendant was arrested for assaulting a correction officer at the jail. Approximately a month after the plea, defendant was arrested for obstructing governmental administration and sexual abuse in the first degree based on allegations that he inappropriately touched a young child. The court granted defendant's request that he be assigned new counsel. Based on defendant's new arrests, Supreme Court (R. Sise, J.) found that he violated the admonishments and imposed an enhanced sentence of 11/313 to 4 years in prison. Defendant appeals. Defendant also appeals, by permission, from an order of County Court (Williams, J.) that denied his motion pursuant to CPL 440.20 to vacate his sentence, without a hearing.

Defendant did not receive the effective assistance of counsel.1 At sentencing, the new counsel who had been assigned—for this charge and at least some of the new charges—stated that he had spoken with defendant “at length.” Supreme Court noted that it had provided counsel with the transcript from the plea proceeding. When the court asked if “defense counsel and/or the defendant himself” wished to be heard, counsel stated that he “didn't represent [defendant] for the plea he has pled guilty to. Perhaps [defendant] would be more competent making argument in regard to sentence than myself.” Defendant was then left to address all sentencing issues, including his arrests on the new charges, without assistance from counsel. Although defendant may have been more aware of the factual circumstances, counsel should have argued against sentence enhancements based on the new arrests. A legitimate and complex legal argument existed as to whether the admonishments contained a “no-misconduct-leading-to-arrest” provision or “no-arrest” provision (see Spence v. Superintendent, Great Meadow Correctional Facility, 219 F3d 162, 167–169 [2d Cir2000] ), and whether defendant was entitled to a hearing to establish any violation of the admonishments. Defendant denied guilt of the new charges and stated that one of his arrests was based on fabrication and improper conduct by law enforcement. Legal argument on enhancement was required, but counsel did not address this legal issue, leaving defendant to argue for himself. This utter lack of participation by counsel in the legal aspect of the proceedings constituted ineffective representation (see People v. Edmond, 84 A.D.2d 938 [1981]; compare People v. Graham, 169 A.D.2d 512, 513 [1991], lv denied 77 N.Y.2d 906 [1991] ). Thus, we vacate the sentence and remit for further proceedings with new counsel.

Based on our modification of the judgment, the appeal from the order denying defendant's CPL 440.20 motion is academic.

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

ORDERED that the appeal from the order is dismissed, as academic.

FOOTNOTES

1.  Although the People contend that some of defendant's arguments are precluded by his waiver of appeal, we find that the waiver was invalid because County Court (Bruhn, J.) did not make clear to defendant that the right to appeal was “separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Lopez, 6 NY3d 248, 256 [2006]; compare People v. Garrand, 100 AD3d 1156, ––––, 953 N.Y.S.2d 727, 728 [2012] ).

McCARTHY, J.

MERCURE, J.P., SPAIN, MALONE JR. and STEIN, JJ., concur.

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