        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1290
KA 08-00031
PRESENT: SMITH, J.P., LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JASON BROOKS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

JASON BROOKS, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (John
J. Ark, J.), rendered September 27, 2007. The judgment revoked
defendant’s sentence of probation and imposed a sentence of
imprisonment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to
Supreme Court, Monroe County, for resentencing.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
that revoked the sentence of probation imposed upon his previous
conviction of robbery in the third degree (Penal Law § 160.05), for
which he was sentenced to an indeterminate term of imprisonment. In
appeal No. 2, he appeals from a judgment convicting him upon his plea
of guilty of assault in the first degree (§ 120.10 [1]) and attempted
murder in the second degree (§§ 110.00, 125.25 [1]), for which he was
sentenced to a determinate term of incarceration plus a period of
postrelease supervision. In both appeals, defendant contends in his
main brief that he was denied effective assistance of counsel based on
a conflict of interest allegedly arising from defense counsel’s
simultaneous representation of defendant and a prosecution witness
against him. We conclude that, on this record, defendant “has not
sustained his burden of establishing ineffectiveness, but that he is
not precluded from raising this issue in a CPL article 440 proceeding
that would permit further factual development of the circumstances
pertaining to the claimed conflict” (People v Sanchez, 21 NY3d 216,
220; see People v Jackson, 108 AD3d 1079, 1079, lv denied 22 NY3d 997;
People v Pagan, 12 AD3d 1143, 1144, lv denied 4 NY3d 766).
Furthermore, we reject defendant’s contention in both appeals, raised
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                                                         KA 08-00031

in his pro se supplemental brief, that Supreme Court erred in refusing
to assign new counsel on his motion to withdraw his plea. Contrary to
defendant’s contention, the record establishes that defense counsel
did not take a position that was adverse to defendant’s motion or
become a witness against defendant (see People v Rossborough, 105 AD3d
1332, 1333, lv denied 21 NY3d 1045; People v Strasser, 83 AD3d 1411,
1411-1412; People v Dickerson, 66 AD3d 1371, 1372, lv denied 13 NY3d
859).

     Defendant further contends that the certificate of conviction in
appeal No. 1 should be amended to reflect that his sentence on the
violation of probation is to run concurrently with, rather than
consecutively to, the sentence imposed upon the conviction in appeal
No. 2. We note, however, that there is a discrepancy between the
sentencing minutes and the certificate of conviction in appeal No. 1,
and we conclude that such discrepancy requires vacatur of the
sentences imposed in both appeals. Although the sentencing minutes
are silent with respect to whether the sentence in appeal No. 1 is to
run consecutively to the sentence in appeal No. 2, the certificate of
conviction in appeal No. 1 states that the sentences are to be served
consecutively. Where the record is silent on the consecutive or
concurrent nature of the sentences, such sentences are deemed to run
concurrently by operation of law (see Penal Law § 70.25 [1] [a]). We
note, however, that the court indicated numerous times during the
sentencing proceeding that it intended to order the sentences to run
consecutively in accordance with the plea agreement. Consequently,
“[i]nasmuch as the record leaves open the possibility that the court’s
failure to specify at sentencing that those sentences are to run
consecutively was accidental (cf. People v Vasquez, 88 NY2d 561,
580–581 [1996])” (People v Bradford, 118 AD3d 1254, 1257), we modify
the judgment by vacating the sentences imposed in both appeals, and we
remit the matter to Supreme Court for resentencing (see People v
Jacobson, 60 AD3d 1326, 1329, lv denied 12 NY3d 916; People v Sinkler,
288 AD2d 844, 845, lv denied 97 NY2d 761).

     By pleading guilty, defendant forfeited his contention in appeal
No. 2 that the absence of counsel at his arraignment requires reversal
of his conviction (see People v Green, 48 AD3d 1056, 1057, lv denied
10 NY3d 934). In any event, even assuming, arguendo, that the absence
of counsel at the arraignment could be raised after a plea, we
conclude that any error does not require reversal inasmuch as
defendant was not prejudiced by the absence of counsel at the
arraignment (see Green, 48 AD3d at 1057; People v Young, 35 AD3d 958,
960, lv denied 8 NY3d 929; People v Witherspoon, 253 AD2d 502, 502-
503, lv denied 92 NY2d 1041).

     Defendant failed to preserve for our review his contention in
appeal No. 2 that he was not aware that the sentence would include a
period of postrelease supervision and, thus, that he was deprived of
due process by the imposition thereof. It is well settled that a
“defendant cannot be expected to object to a constitutional
deprivation of which [he] is unaware . . . And, in that circumstance,
the failure to seek to withdraw the plea or to vacate the judgment
does not preclude appellate review of the due process claim” (People v
                                 -3-                          1290
                                                         KA 08-00031

Turner, 24 NY3d 254, 258). Here, however, defense counsel stated at
the time of the plea that the sentence promise included a period of
postrelease supervision, the court reiterated that part of the
sentence promise on two other court dates prior to sentencing, the
prosecutor restated it on a third date, and defendant noted his
awareness of that condition of the plea during argument of his motion
to withdraw his plea, which was not based on the imposition of
postrelease supervision that defendant now challenges. Thus, although
a defendant need not preserve a challenge to the imposition of
postrelease supervision during the sentencing proceeding if he or she
was not made aware of that part of the sentence before its imposition
(see People v Louree, 8 NY3d 541, 546), “here defendant was advised of
what the sentence would be, including its [postrelease supervision]
term, [on at least three appearances prior to] the sentencing
proceeding[, and he personally noted his awareness of that condition].
Because defendant could have sought relief from the sentencing court
in advance of the sentence’s imposition, Louree’s rationale for
dispensing with the preservation requirement is not presently
applicable” (People v Murray, 15 NY3d 725, 727). We decline to
exercise our power to review defendant’s contention as a matter of
discretion in the interest of justice.




Entered: February 6, 2015                       Frances E. Cafarell
                                                Clerk of the Court
