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

1121
KA 13-01654
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID STREBER, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John R.
Schwartz, A.J.), rendered July 9, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of stolen
property in the fourth degree.

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

     Memorandum: On appeal from a judgment convicting him, upon a
plea of guilty, of criminal possession of stolen property in the
fourth degree (Penal Law § 165.45 [1]), defendant contends that his
plea was not knowingly, voluntarily, or intelligently entered because
County Court failed to inform him of a direct consequence of his plea.
We agree and therefore reverse the judgment, grant defendant’s motion
to withdraw his guilty plea, vacate the plea, and remit the matter to
County Court for further proceedings on the indictment.

     “It is well settled that, in order for a plea to be knowingly,
voluntarily and intelligently entered, a defendant must be advised of
the direct consequences of that plea” (People v Jones, 118 AD3d 1360,
1361; see People v Harnett, 16 NY3d 200, 205; People v Hill, 9 NY3d
189, 191, cert denied 553 US 1048). Direct consequences of a plea are
those that have “a definite, immediate and largely automatic effect on
[a] defendant’s punishment” (People v Ford, 86 NY2d 397, 403) and
include, among other “core components of a defendant’s sentence[,]”
the term of imprisonment (Harnett, 16 NY3d at 205). Here, although
the court during defendant’s arraignment articulated the terms of a
plea offer that included the alternative sentences defendant would
receive if he was or was not successful in the Judicial Diversion
Program, the court did not state those alternative sentences on the
                                 -2-                          1121
                                                         KA 13-01654

record during the plea colloquy. Specifically, although the court
stated during the plea colloquy that defendant would receive a “cap of
felony probation if successful[,]” the court did not articulate the
sentence that defendant would receive if he was unsuccessful.

     Furthermore, the Judicial Diversion Program Contract (Contract)
signed by defendant on the date he pleaded guilty contradicts the
terms of the plea agreement set forth in the transcript of defendant’s
arraignment. Namely, during the arraignment, the court stated, “if
unsuccessful, a cap of one and a half to three. If successful, a cap
of five years probation.” In contrast, the Contract provides that
defendant would receive “felony probation” if he was unsuccessful, but
it does not reflect that defendant was promised any particular
sentence in the event that he was successful with the program. Thus,
even though the court ensured during the plea colloquy that no
promises had been made to defendant “other than the promises placed on
the record and contained in the [C]ontract[,]” the promises made on
the record were inconsistent with the promises made in the Contract.

     To the extent that the People contend that the court corrected
those inconsistencies when the Contract was later amended to reflect
the terms of the plea agreement, we reject that contention. The
Contract was amended and re-signed by defendant one week after
defendant’s guilty plea was taken, and the Court of Appeals has made
clear that the court must inform the defendant of the direct
consequences of a plea “[p]rior to accepting a guilty plea” (Hill, 9
NY3d at 191). Moreover, there is no evidence in the record that
defendant was afforded an opportunity to withdraw his guilty plea on
the date he re-signed the amended Contract. Finally, we reject the
People’s contention that the court’s amendment of the Contract was
merely ministerial or clerical in nature (see People v Howard, 1 AD3d
1015, 1016; see also People v Minaya, 54 NY2d 360, 364, cert denied
455 US 1024). The record is insufficient for us to conclude that the
court’s amendment “fully comported with the expectations of the court,
the prosecutor, and the defendant at the time the plea was originally
entered” (Howard, 1 AD3d at 1016 [internal quotation marks omitted]),
and thus the court was not permitted to make the amendment as a
ministerial or clerical matter.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
