Opinion
390 KA 12-00729
03-27-2015
The PEOPLE of the State of New York, Respondent, v. Floyd VANHOOSER, Defendant–Appellant. (Appeal No. 2.).
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, and SCONIERS, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of three counts of burglary in the second degree (Penal Law § 140.25[2] ) and one count of burglary in the third degree (§ 140.20). We agree with defendant that the waiver of the right to appeal is invalid inasmuch as there is no indication in the record that defendant understood that the waiver of the right to appeal was separate and distinct from those rights automatically forfeited upon a plea of guilty (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Blacknell, 117 A.D.3d 1564, 1564–1565, 985 N.Y.S.2d 390, lv. denied 23 N.Y.3d 1059, 994 N.Y.S.2d 319, 18 N.E.3d 1140 ; People v. Johnson, 109 A.D.3d 1191, 1191, 971 N.Y.S.2d 723, lv. denied 22 N.Y.3d 997, 981 N.Y.S.2d 2, 3 N.E.3d 1170 ). We further agree with defendant that this case should be remitted for a hearing on the issue whether he is a persistent violent felony offender. A persistent violent felony offender is one who is convicted of a violent felony offense after having previously been subjected to two or more predicate violent felony convictions (see § 70.08[1][a] ). The sentence upon the predicate violent felony convictions “must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted” (§ 70.04[1] [b][iv] ). However, “[i]n calculating the ten year period ..., any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration” (§ 70.04[1][b] [v] ).
Here, defendant admitted that he was convicted of two prior violent felonies, but objected to the tolling periods that were computed by County Court pursuant to Penal Law § 70.04(1)(b)(v) and requested a hearing. After some discussion with the court, defendant conceded that the court's computations were correct, essentially waiving the necessity for a hearing. We agree with defendant that his waiver of the hearing was not effective because it was the product of impermissible coercion by the court. The court indicated that it could consider defendant's request for a hearing to be a violation of the plea agreement, but that was not accurate. “While [the court] did advise defendant during the plea hearing that he was going to be sentenced as a [persistent violent] felony offender, it never specifically instructed him that admitting such [persistent violent] felony offender status was a condition of the plea agreement and that his failure to do so would result in a more severe sentence” (People v. Marrero, 30 A.D.3d 637, 638, 815 N.Y.S.2d 352 ). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing following a hearing in which the People will have the burden of proof of establishing the appropriate time computations under Penal Law § 70.04(1)(b)(v) and, consequently, whether defendant is a persistent violent felony offender (see People v. Shuler, 100 A.D.3d 1041, 1044, 952 N.Y.S.2d 687, lv. denied 20 N.Y.3d 988, 958 N.Y.S.2d 704, 982 N.E.2d 624 ; People v. Williams, 48 A.D.3d 715, 716, 852 N.Y.S.2d 298, lv. denied 10 N.Y.3d 940, 862 N.Y.S.2d 347, 892 N.E.2d 413 ; see generally CPL 400.15[7][a] ; People v. Diggins, 11 N.Y.3d 518, 524, 872 N.Y.S.2d 408, 900 N.E.2d 959 ).
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence, and the matter is remitted to Onondaga County Court for further proceedings.