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

435
KA 13-02108
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARLAND D. BROOKS, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Marianne
Furfure, A.J.), rendered October 15, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, and the matter
is remitted to Steuben County Court for further proceedings on the
indictment.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted assault in the second degree (Penal Law
§§ 110.00, 120.05 [3]), defendant contends that the Trial Judge should
have recused herself. We conclude that defendant waived that
contention, inasmuch as the Judge explained her potential conflict of
interest and defendant consented to the Judge’s continued involvement
after discussing the potential conflict with defense counsel (see
People v Hines [Stephen], 260 AD2d 646, 647, lv denied 93 NY2d 1019).
In any event, we conclude on this record that the Judge did not abuse
her discretion in failing to recuse herself (see generally People v
Moreno, 70 NY2d 403, 405-406; Hines, 260 AD2d at 647).

     We agree with defendant, however, that his plea should be vacated
on the ground that it was not voluntarily, knowingly or intelligently
entered based on the mistaken understanding of the legally required
sentence shared by County Court and counsel. Although defendant
failed to preserve his contention for our review (see People v
Darling, 125 AD3d 1279, 1279), we conclude that the narrow exception
to the preservation requirement applies (see generally People v Lopez,
71 NY2d 662, 666). Here, it is clear from the face of the record that
the prosecutor incorrectly stated that the sentence on the instant
conviction must run consecutively to the sentence imposed on an
                                 -2-                           435
                                                         KA 13-02108

unrelated conviction, when in fact that was not the case because the
instant offense occurred prior to the unrelated conviction (see
generally Penal Law § 70.25). It is equally clear that this error was
not corrected by defense counsel or the trial court. Thus,
preservation was not required “[i]nasmuch as defendant—due to the
inaccurate advice of his counsel and the trial court—did not know
during the plea . . . proceedings” that consecutive sentences were not
required by law (People v Williams, 123 AD3d 1376, 1377).
“ ‘[D]efendant [could] hardly be expected to move to withdraw his plea
on a ground of which he ha[d] no knowledge’ ” (People v Peque, 22 NY3d
168, 182, quoting People v Louree, 8 NY3d 541, 546). Even assuming,
arguendo, that the narrow exception to the preservation requirement is
inapplicable, we would nevertheless exercise our power to address
defendant’s contention as a matter of discretion in the interest of
justice (see CPL 470.15 [3] [c]).

     On the merits, we conclude that defendant’s plea should be
vacated because “[i]t is impossible to have confidence, on a record
like this, that defendant had a clear understanding of what he was
doing when he entered his plea,” based on the prosecutor’s erroneous
statement that consecutive sentences were required and the failure of
the court or defense counsel to correct that error. We “cannot
countenance a conviction that seems to be based on complete confusion
by all concerned” (People v Johnson, 23 NY3d 973, 975-976; see People
v Worden, 22 NY3d 982, 985; People v Williams, 123 AD3d 240, 243-244).
Where, as here, “the prosecutor, defense counsel and the court
all suffered from the same misunderstanding of the [court’s sentencing
discretion], it would be unreasonable to conclude that defendant
understood it” (Worden, 22 NY3d at 985). We therefore reverse the
judgment, vacate the plea, and remit the matter to County Court for
further proceedings on the indictment. In light of our determination,
we do not reach defendant’s remaining contention.




Entered:   May 8, 2015                         Frances E. Cafarell
                                               Clerk of the Court
