New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
June 13, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
TARLISHA OWENS ALSO KNOWN AS TARLISHA FRANKLIN,
People v Owens (Tarlisha)
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on June 13, 2012
PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ
Appeal from an order of the Justice Court of the Town of Clarkstown, Rockland County (Howard Gerber, J.), dated May 18, 2011. The order granted defendant's motion to vacate 1) two judgments convicting defendant, upon her pleas of guilty, of disorderly conduct and petit larceny, respectively, and 2) an amended judgment revoking a sentence of probation previously imposed by the same court, upon defendant's admission that she had violated a condition thereof, and resentencing her to a term of imprisonment upon a prior conviction of petit larceny.
ORDERED that the order is reversed, on the law, and the matter is remitted to the Justice Court for a determination de novo, following a hearing, of defendant's motion to vacate the two judgments of conviction and the amended judgment of conviction.
Defendant moved pursuant to CPL 440.10 (1) (b) to vacate two judgments convicting her, respectively, of disorderly conduct (Penal Law § 240.20 ) and petit larceny (Penal Law § 155.25). The motion also sought to vacate an amended judgment revoking defendant's sentence of probation previously imposed by the same court, upon defendant's admission that she had violated a condition thereof, and resentencing her to a term of imprisonment upon a prior conviction of petit larceny. By order dated May 18, 2011, the Justice Court granted the motion on the ground that defendant's guilty pleas, as well as her admission of having violated probation, had been reduced by an alleged unfulfilled promise by the court and the People that defendant would be incarcerated in the Rockland County Jail for the duration of her sentence.
It is well established that "a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored" (People v Selikoff, 35 NY2d 227, 241 ; see People v Jenkins, 44 AD3d 1, 16 ). "Compliance with a plea bargain is to be tested against an objective reading of the bargain, and not against a defendant's subjective interpretation thereof" (People v Cataldo, 39 NY2d 578, 580 ; see People v Guy, 63 AD3d 609, 610 ). In light of the foregoing, if a plea bargain is susceptible to more than one objective interpretation (Cataldo, 39 NY2d at 580), the resulting plea must be vacated (see People v Oginski, 41 AD3d 1097, 1098 ; People v Reyes, 167 AD2d 920, 921 ).
Defendant's papers in support of her motion demonstrated that issues of fact exist as to whether her guilty pleas, as well as her admission of having violated probation, were knowing, voluntary and intelligent. It is unclear whether the Justice Court's off-the-record conversations with defense counsel and the People, regarding defendant's childcare arrangements, caused defendant to reasonably infer that she would be incarcerated in the Rockland County Jail, particularly in light of the plea and sentencing minutes which, at times, specifically refer to her imprisonment at that facility. Furthermore, since the allegations in the motion papers were neither conceded by the People to be true nor "conclusively substantiated by unquestionable documentary proof" (CPL 440.30  [c]), a hearing is necessary in order for the Justice Court to make the required "findings of fact essential to the determination" of the motion (CPL 440.30 ; see People v Di Donato, 263 AD2d 677, 679 ; People v Melendez, 47 AD2d 662, 663 ).
It should be noted that in evaluating the evidence presented at the hearing, the Justice Court must determine whether the plea bargain was objectively susceptible to the interpretation that defendant would be incarcerated in the Rockland County Jail in exchange for her guilty pleas as well as her admission of having violated probation, and not whether defendant, in fact, subjectively inferred from the context of the plea negotiations that she would be incarcerated in the Rockland County Jail for the duration of her sentence (see Cataldo, 39 NY2d at 580; see also Oginski, 41 AD3d at 1098; Reyes, 167 AD2d at 921).
Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: June 13, 2012
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