Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 15, 2007, as amended October 30, 2007, and as further amended July 29, 2008, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him to a term of 7 years, unanimously reversed, on the law, the plea vacated, the full indictment reinstated, and the matter remanded for further proceedings.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Friedman, Gonzalez, Catterson, Renwick, JJ.
Before defendant pleaded guilty, the prosecutor asserted that defendant was a second felony offender based on a New Jersey conviction. Defense counsel did not challenge that assertion, and following defendant's guilty plea he was sentenced, as a second felony offender, to a term of seven years with five years' postrelease supervision. Subsequently, by way of a CPL 440.20 motion to set aside sentence, defendant established that his New Jersey conviction did not qualify as a New York felony. At his ultimate resentencing, defendant moved to withdraw his plea as involuntary, claiming he had been misinformed as to his status and potential sentencing exposure. The resentencing court denied the motion, and imposed the same prison term as originally imposed, but this time with a PRS period of three years.
The plea withdrawal motion should have been granted. While defendant's ultimate sentence was actually less (with regard to PRS) than the one he bargained for, "[a]t the time defendant pleaded guilty, [h]e did not possess all the information necessary for an informed choice among different possible courses of action... Accordingly, defendant's decision to plead guilty cannot be said to have been knowing, voluntary and intelligent." (People v Van Deusen, 7 NY3d 744, 746 ). To the extent the People are arguing that defendant would have still have accepted a disposition involving a seven-year prison term had he known he was only a first felony offender, that argument is speculative.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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