And you must complete the community service or else there will be a one year jail alternative." Defendant indicated that he understood and the matter was adjourned for sentencing to November 28, 2017.Īt the outset of the sentencing proceeding, defense counsel advised the court that defendant had completed his 20 days of community service. In pleading guilty to the misdemeanor count, defendant was advised by the court that the sentence promise would be "20 days of community service." The court further stated "ou understand you can't get re-arrested. The court again elicited from defendant that he had adequate time to speak with his counsel and was satisfied with counsel's representation. In response, the court told defendant that it would not "specify" a schedule for the performance of the community service. When defendant expressed concern about "the timing of the community service," the court responded, "I will give you more than enough reasonable time to do it." The court also advised defendant that, as a condition of the plea, he could not be rearrested and "must return on the adjournment date." Defense counsel stated that defendant wanted to speak with his employer about scheduling the community service. Defendant confirmed that he had sufficient time to speak with his attorney and was satisfied with his representation. On the recall, the court informed defendant that defense counsel had conveyed to the People defendant's interest in community service and characterized the People's plea offer as "reasonable." Defense counsel accepted the plea offer and stated that "the plea is conditioned on him doing 20 days of community service, and if he does not do the community service, he can face up to one year jail." A mandatory surcharge and a six-month driver's license suspension were undisputedly part of the promised sentence at the time of the plea.ĭefendant was placed under oath and the court conducted a thorough plea allocution, eliciting defendant's waiver of his constitutional rights and his admission of his factual guilt to the reduced crime. An off-the-record discussion with the court and counsel ensued, whereupon the People changed their sentence offer to 20 days of "community service instead of probation." Defense counsel sought a recall of the case to confer with defendant. On September 18, 2017, in open court, the People offered a reduced plea to the class A misdemeanor of criminal possession of a controlled substance in the seventh degree, the eighth count of the indictment, with a promised sentence of probation. As a result, defendant's claim that the court's imposition of an alleged new sentence rendered his guilty plea involuntary is unpreserved for our review.Īfter initially being charged by felony complaint in May 2017, defendant was indicted in July 2017, for two counts of criminal possession of a controlled substance in the third degree, a class B felony offense, and six other related offenses. Prior to imposition of that sentence, defendant who had the practical ability to do so, failed to protest or otherwise seek to withdraw his guilty plea. At the outset of the sentencing proceeding, the defense counsel and prosecutor affirmatively acknowledged to the court that the bargained-for sentence to be imposed was a conditional discharge. ![]() ![]() ![]() This opinion is uncorrected and subject to revision before publication in the Official Reports.ĭefendant challenges the voluntariness of his guilty plea, asserting that the court in its plea colloquy failed to advise him that the 20 days of community service to be imposed would be a condition of a sentence of a one-year conditional discharge. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
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