This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 78
The People &c.,
            Respondent,
        v.
Baasil Reynolds,
            Appellant.




           Michael S. Woodruff, for appellant.
           Vincent Rivellese, for respondent.




MEMORANDUM:
     The order of the Appellate Division should be affirmed.
     Defendant was charged by indictment with criminal possession
of a weapon in the third degree (Penal Law § 265.02[1]), and
menacing in the second and third degrees (Penal Law §§ 120.14[1],
120.15).   After having been incarcerated for approximately six
months during the pendency of his case, defendant accepted a plea


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agreement whereby he would plead guilty to criminal possession of
a weapon in the third degree, a felony, and his sentencing would
be delayed to give him a chance to withdraw his plea and replead
to a lesser charge - - criminal possession of a weapon in the
fourth degree, a misdemeanor - - and be sentenced to time served
if he complied with certain conditions.   If defendant failed to
comply with these conditions, he would not be permitted to
withdraw his guilty plea to the felony and would be sentenced to
two-to-four years.
     The plea conditions required defendant to first, be remanded
to the New York City Department of Correction for an additional
six months and, second, be released on his own recognizance for a
set period of time prior to the sentencing date, during which
time he could not be arrested or alleged to have violated an
order of protection in favor of the complainants.   Defendant
completed the additional six months in jail, satisfying one
condition of his plea agreement.   After being released for over a
year, however, defendant was arrested on the day of his
sentencing.1   After the court held a hearing pursuant to People v
Outley (80 NY2d 702 [1993]), it imposed the promised two-to-four-
year prison sentence on the existing felony conviction.


     1
      Defendant was released on December 9, 2009 and was arrested
on October 19, 2010. Despite his violation of the no-arrest
condition, with the consent of the People and the court, his
sentencing was deferred for an additional six months, to June 14,
2011, with the same no-arrest condition. Defendant was arrested
on June 14, 2011, hours before his sentencing.

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     Defendant failed to preserve his claim that his plea of
guilty should be vacated because it was conditioned on an alleged
illegal presentence condition that he remain incarcerated for an
additional six months prior to sentencing.   As we recently stated
in People v Williams ( __ NY3d __, 2016 NY Slip Op. 02551
[2016]), "[w]hen a defendant pleads guilty to a crime, he or she
generally must move to withdraw the plea or otherwise object to
its entry prior to the imposition of sentence to preserve a
challenge to the validity of the plea for appellate review."
While this Court has recognized an "illegal sentence" as "a
narrow exception to the preservation rule" (see People v Nieves,
2 NY3d 310, 315 [2004][internal citation and quotation marks
omitted]), the Appellate Division correctly held that the plea
was not conditioned on an illegal sentence, nor was the actual
sentence imposed illegal.   Contrary to the dissent's view,
defendant's case is procedurally distinguishable from People v
Avery (85 NY2d 503, 504 [1995]) and People v Rodney E. (77 NY2d
672, 673 [1991])(dissenting op., at 3) in an important respect.
In those cases, the issue was violation of an allegedly illegal
presentencing condition that triggered defendant's sentence.
Here, defendant's sentence was premised on a violation of an
admittedly lawful presentence condition - he could not be
arrested - and the issue of the propriety of the plea could
certainly have been raised prior to sentencing.   Thus,
defendant's challenge to the presentencing incarceration, which


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was not part of the sentence, is subject to the preservation rule
(see Williams, Slip Op. at 10).
     With respect to the Outley hearing, the Appellate Division
correctly concluded that the trial court's finding and
determination comported with the standard articulated in People v
Outley (80 NY2d 702 [1993]).   There, we held that "proof that
defendant actually committed the postplea offense which led to
the arrest is not necessary" (80 NY2d at 713).   We further noted:
     "When an issue is raised concerning the validity of the
     postplea charge or there is a denial of any involvement
     in the underlying crime, the court must conduct an
     inquiry at which the defendant has an opportunity to
     show that the arrest is without foundation (citation
     omitted). The nature and extent of the inquiry - -
     whether through a summary hearing pursuant to CPL
     400.10 or some other fair means - - is within the
     court's discretion. The inquiry must be of sufficient
     depth, however, so that the court can be satisfied - -
     not of defendant's guilt of the new criminal charge but
     of the existence of a legitimate basis for the arrest
     on that charge."
     (id.).

Here, the judge heard testimony from the complainant and the
arresting officer.   Defendant also testified that the complainant
had been the aggressor and had attacked him.   The judge found
that there was a legitimate basis for defendant's arrest,
implicitly rejecting defendant's version of events, and that
finding was adopted by the sentencing court.   Thus, because
defendant was given an opportunity to testify to his exculpatory
explanation, and his testimony was evidently discredited by the
court, the nature of the inquiry was sufficient under our Outley


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standard.




            - 5 -
People v Baasil Reynolds
No. 78




RIVERA, J.(dissenting):
     A plea agreement conditioned on defendant's presentence
"interim incarceration" lacks statutory authority and renders the
plea invalid.    Based on our case law, I disagree with the
majority that defendant's claim is unpreserved for our review,
and on the merits I conclude the plea should be vacated.
     At the time of his plea agreement, defendant had been
incarcerated for six months.    In accordance with the terms of the
agreement, after defendant pled guilty to criminal possession of
a weapon in the third degree, a class D felony, and menacing in
the second degree, a class A misdemeanor, the court would adjourn
his sentencing so that he could complete several conditions,
including an additional six months of incarceration.    The
prosecutor explained to defendant that this would result in an
aggregate incarceratory period of "a hard year.    'Hard,' meaning
a full year in jail."    The other conditions required that upon
his release, defendant had to "stay out of trouble" for a year,
not be arrested, and also obey the orders of protection entered
against him.    Defendant would have to appear in court at every
adjournment, approximately every three months, for the course of
the year.   If defendant complied with the terms, the court would


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allow him to withdraw his guilty plea on the felony charge and
sentence him to the lesser offense of the misdemeanor charge
alone.   If he failed to comply with the plea terms he would be
sentenced as a second felony offender to two to four years
imprisonment on the felony charge.
     The court described the arrangement as "a little unorthodox"
and explained to defendant that
           "[i]t's sort of like probation but isn't
           probation. In a sense, it's better than a
           probationary sentence would be because it's
           only-- you only have to stay out of trouble
           for a year.
           "On the other hand, it's worse than a
           probationary sentence would be because you
           have to be in jail for a year until you're
           released.
           . . .
           "Let me correct one thing I said. I said
           the-- IT'S [sic] sort of like probation but
           it isn't because you don't have a probation
           officer that you need to report to. There's
           not a probation officer who's going to come
           to wherever it is you're living and make bed
           checks. It's not a probation officer who you
           have to tell where it is that you're living.
           That's where you're living?"
     Defendant served the additional six months in jail and was
released in accordance with the terms of his plea.    On the day of
his scheduled sentencing, defendant was arrested.    The court
subsequently concluded that he violated the terms of the plea,
and defendant was sentenced to an indeterminate term of two to
four years on the felony.



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     Defendant asserts that his plea is invalid because the court
lacked authority to impose a presentence condition of
incarceration.   Defendant may pursue this claim on direct appeal,
even though he did not object to the condition or move to
withdraw his plea, because our rules of preservation do not apply
to claims of unlawful "interim" conditions.
     Defendant's case is procedurally indistinguishable from
People v Rodney E. (77 NY2d 672, 673 [1991]) and People v Avery
(85 NY2d 503, 504 [1995]), wherein the Court reached the merits
of the defendants' challenges to their respective plea
conditions, notwithstanding their failure to object prior to
sentencing.   Indeed, in describing the proceedings below, the
Avery Court noted that the Appellate Division erroneously
concluded the issue was unpreserved, citing Rodney E. (Avery, 85
NY2d at 505).    Like defendant here, the defendants in Rodney E.
and Avery both claimed that the sentencing courts lacked
authority to impose presentencing conditions.   In Rodney E., the
defendant was placed on "interim probation" (77 NY2d at 673), and
in Avery the defendant was required to participate in a private
drug rehabilitation program before sentencing (85 NY2d at 504).
Thus, this Court has previously rejected a preservation barrier
to claims that a presentencing condition is illegal, and
therefore we may consider defendant's challenge to the legality
of his post-conviction, presentence period of "interim"




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incarceration.1
     Turning to the merits, a court has discretion to impose an
appropriate sentence and to structure a plea on conditions that
"do not violate any statute or contravene public policy" (Avery,
85 NY2d at 507 [internal citation omitted]).    Here, the six
months of presentence incarceration lacks a statutory basis, and
constitutes a strictly penal sanction unrelated to any
legislatively-approved conditions intended to promote a
defendant's lawful conduct and rehabilitation.
     Pursuant to CPL 400.10 (4), "[a]fter conviction and prior to
sentencing the court may adjourn sentencing to a subsequent date
and order the defendant to comply with any of the conditions" set
forth in Penal Law §§ 65.10 (2) (a)-(f) and (l).    The presentence
incarceration imposed by the court here is not one of the
specific conditions provided for in 65.10 (2) (a)-(f).      Those
conditions relate to law abiding conduct and rehabilitation.2

     1
      The majority attempts to distinguish Rodney E. and Avery on
the superficial ground that the defendants in those cases
violated an illegal presentence condition, while here defendant's
sentence is premised on his violation of a lawful no-arrest
condition (majority op., at 3-4). As illustrated in Rodney E.
and Avery the dispositive and prefatory issue is the court's
underlying authority to impose a condition post conviction and
before sentencing (Rodney E., 77 NY2d at 673; Avery, 85 NY2d at
505). Therefore, an illegal presentence condition, and its
affect on the validity of the plea agreement, does not escape
review because defendant complies with the condition.
     2
         Under Penal Law §§ 65.10 (2) (a)-(f)
            "[w]hen imposing a sentence of probation or
            of conditional discharge, the court shall, as
            a condition of the sentence, consider

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restitution or reparation and may, as a
condition of the sentence, require that the
defendant:

(a) Avoid injurious or vicious habits;

(b) Refrain from frequenting unlawful or
disreputable places or consorting with
disreputable persons;

(c) Work faithfully at a suitable employment
or faithfully pursue a course of study or of
vocational training that will equip him for
suitable employment;

(d) Undergo available medical or psychiatric
treatment and remain in a specified
institution, when required for that purpose;

(e) Participate in an alcohol or substance
abuse program or an intervention program
approved by the court after consultation with
the local probation department having
jurisdiction, or such other public or private
agency as the court determines to be
appropriate;

(e-1) Participate in a motor vehicle accident
prevention course. The court may require such
condition where a person has been convicted
of a traffic infraction for a violation of
article twenty-six of the vehicle and traffic
law where the commission of such violation
caused the serious physical injury or death
of another person. For purposes of this
paragraph, the term 'motor vehicle accident
prevention course' shall mean a motor vehicle
accident prevention course approved by the
department of motor vehicles pursuant to
article twelve-B of the vehicle and traffic
law;

(f) Support his dependents and meet other
family responsibilities."

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Nor does the presentence incarceration fit within the language of
65.10 (2) (l), which provides a court with the discretion to
require a defendant to "[s]atisfy any other conditions reasonably
related to [defendant's] rehabilitation."    Defendant's six months
in jail was not rehabilitative within the meaning of 65.10 (2)
(l), but rather quintessentially punitive.
     The condition imposed on defendant is not authorized under
any other provision that might arguably permit incarceration.     He
was not incarcerated in accordance with Penal Law § 65.10 (2),
which allows the court to incarcerate a person who has taken a
plea for the limited purpose of providing medical or substance
abuse treatment.   Further, defendant correctly argues that the
condition imposed here does not fit under any version of a "split
sentence" because the court imposed an aggregate term of one year
of incarceration and a year of conditional discharge, which does
not comport with any periods allowed by law.   The court could
only have sentenced defendant to a maximum of six months and a
period of conditional discharge of no less than three years (see
Penal Law §§ 60.01 [2] [d], 65.00 [3] [a] [i], 65.05 [3] [a]).
     Defendant's presentence confinement was likewise not in
accordance with a proper securing order under CPL 510.10 as the
Appellate Division determined.    That section is not intended to
apply to persons, like defendant, held post-conviction.   CPL
510.10 provides




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          "[w]hen a principal, whose future court
          attendance at a criminal action or proceeding
          is or may be required, initially comes under
          the control of a court, such court must, by a
          securing order, either release him on his own
          recognizance, fix bail or commit him to the
          custody of the sheriff"
(CPL 510.10).   As the practice commentary states,
          "[t]his section is one of several in the CPL
          establishing the duty of the court to issue a
          securing order when a principal (as defined
          in CPL § 500.10 [1]) initially comes under
          its control in a criminal action or
          proceeding. For a defendant that means upon
          initial arraignment, unless of course the
          matter is finally disposed of at that time
          (see CPL §§ 170.10[7], 180.10[6], 210.15[6])"
(Peter Preiser, Practice Commentaries, McKinney's CPL § 510.10).
The provision applicable to post-conviction confinement is CPL
430.20 (3) (a), which allows for definite or intermittent
sentences, "[i]n counties contained within New York City or in
any county that has a county department of correction, commitment
must be to the custody of the department of correction of such
city or county."
     For the reasons I have stated, there is no express statutory
authority granting a court the discretion to impose a post-
conviction, presentencing term of incarceration like the one
imposed here.   As a consequence, defendant's six-month
incarceratory "interim" condition is illegal.   Therefore, I
dissent and would reverse the Appellate Division, vacate




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defendant's plea, and remit for further proceedings.3
*   *    *   *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed, in a memorandum. Chief Judge DiFiore and Judges
Pigott, Abdus-Salaam, Stein, Fahey and Garcia concur. Judge
Rivera dissents in an opinion.

Decided June 7, 2016




     3
      Based on my conclusion that the plea should be vacated, I
do not address defendant's claims regarding the Outley hearing
and express no opinion on the majority's analysis on that matter.

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