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

490
KA 11-02451
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KAHLEIF GREEN, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered December 1, 2010. The judgment convicted
defendant, upon his plea of guilty, of robbery in the third degree and
assault in the second degree.

     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
Onondaga County Court for further proceedings in accordance with the
following memorandum: Defendant appeals from a judgment convicting
him upon his plea of guilty of robbery in the third degree (Penal Law
§ 160.05) and assault in the second degree (§ 120.05 [3]). We note at
the outset that we agree with defendant that the waiver of the right
to appeal is not valid. County Court informed defendant that, if he
did not sign a written waiver of the right to appeal, the court would
not be bound to honor the sentence promise and could impose up to the
maximum sentence. We conclude that the court “thereby threatened
defendant with a greater term of incarceration in the event that
defendant did not sign the waiver, thus rendering the court’s colloquy
concerning the waiver impermissibly coercive” (People v Quinones, 129
AD3d 1699, 1700).

     Defendant failed to preserve for our review his contention that
his guilty plea was not voluntarily entered, inasmuch as he failed to
move to withdraw the plea or to vacate the judgment of conviction (see
People v Brown, 305 AD2d 1068, 1068-1069, lv denied 100 NY2d 579). In
any event, defendant’s contention lacks merit. First, “the fact that
defendant was required to accept or reject the plea offer within a
short time period does not amount to coercion” (People v Jenkins, 117
AD3d 1528, 1529, lv denied 23 NY3d 1063 [internal quotation marks
omitted]). Second, “[t]he fact that the possibility of a federal
prosecution may have influenced defendant’s decision to plead guilty
                                 -2-                           490
                                                         KA 11-02451

is insufficient to establish that the plea was coerced” (People v
Hobby, 83 AD3d 1536, 1536, lv denied 17 NY3d 859).

     We agree with defendant’s further contention that the court erred
in sentencing him as a second felony offender without conducting a
hearing. Defendant initially told the court that he wished to
challenge the constitutionality of his predicate felony conviction
but, when the court stated that it would consider defendant’s
challenge to be a violation of the plea agreement, defendant agreed
not to challenge the predicate felony conviction, essentially waiving
his right to a hearing. We agree with defendant that his waiver was
the product of impermissible coercion by the court because, although
the court “ ‘did advise defendant during the plea hearing that he was
going to be sentenced as a [second] felony offender, it never
specifically instructed him that admitting such [second] 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
VanHooser [appeal No. 2], 126 AD3d 1531, 1532). 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 . . . whether defendant
is a [second] . . . felony offender” (id.). In light of our
determination, we do not address defendant’s challenge to the severity
of the sentence.




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
