The People v. Christian Williams , 27 N.Y.3d 212 ( 2016 )


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    This opinion is uncorrected and subject to revision before
    publication in the New York Reports.
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    No. 36
    The People &c.,
    Appellant,
    v.
    Christian Williams,
    Respondent.
    Beth Fisch Cohen, for appellant.
    Anita Aboagye-Agyeman, for respondent.
    ABDUS-SALAAM, J.:
    When 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 (see
    People v Toxey, 86 NY2d 725, 726 [1995]; People v Claudio, 64
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    NY2d 858, 858-859 [1985]).   In a line of cases beginning with
    People v Lopez (71 NY2d 662 [1988]), however, we clarified the
    existence of a narrow exception to the preservation requirement
    in rare cases where the defendant lacks a reasonable opportunity
    to object to a fundamental defect in the plea which is clear on
    the face of the record and to which "the court's attention should
    have been instantly drawn," such that "the salutary purpose of
    the preservation rule is . . . not jeopardized" (id. at 666).      On
    this appeal, we must apply the foregoing principles to determine
    whether, prior to the final imposition of his sentence, defendant
    had a practical ability to challenge the validity of his guilty
    plea on the theory that it was induced by the promise of an
    unlawful sentence, for such an ability to object would preclude
    the application of the exception to the preservation rule
    delineated in Lopez and its progeny.   On the record before us, we
    hold that defendant had a reasonable opportunity to attack the
    legality of his guilty plea in the court of first instance on the
    same grounds now advanced on appeal.   Because defendant did not
    take advantage of that opportunity, he failed to preserve his
    current claim for appellate review.
    I.
    After his arrest and indictment on drug sale charges,
    defendant Christian Williams entered into a negotiated plea
    bargain with the People.   Specifically, at a scheduled court
    proceeding, defense counsel announced that the People had offered
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    a recommended sentence of three years in prison in exchange for
    defendant's guilty plea to criminal sale of a controlled
    substance in the third degree (see Penal Law § 220.39 [1]).     The
    court asked defense counsel "[w]hat period of prosecution [sic]"
    had been negotiated, and counsel answered, "It was the minimum, I
    believe."   When the court asked "[w]hy it would be the minimum,"
    the prosecutor replied, "On my note it indicates that, for
    [defendant], the post-release supervision time would be two years
    post-release supervision."   Relying largely on the People's
    apparent belief in the appropriateness of their proposed
    disposition, the court agreed to offer defendant a three-year
    prison term and a two-year period of postrelease supervision in
    exchange for his guilty plea.
    In the course of the ensuing plea colloquy, the court
    told defendant about the sentence to be imposed, saying:
    "As you came into court today, you were
    charged with the crime to which you pled
    guilty but I hear that there is a predicate
    felony statement, so you theoretically could
    have received up to 12 years, is it? I lost
    my sentence chart when we transferred
    courtrooms so I don't know. I think it is up
    to 12 years. Let's assume it is up to 12
    years based on your prior criminal history.
    You've been given a chance to plead guilty
    and you are going to receive a three-year
    sentence with two years post-release
    supervision. Do you understand that?"
    Defendant answered, "Yes."   The court immediately asked whether
    defendant "had a chance to speak with" and had, "in fact, spoken
    with [defense counsel] today and on other days" about his case,
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    such that counsel had "explained to [defendant] various legal
    rights and [his] options with regard to this case."   Defendant
    responded in the affirmative.
    Later in the plea proceeding, the court delivered the
    following warning to defendant:
    "Listen carefully. Predicate felony
    conviction today. If there is a third felony
    conviction, in theory at least, that would be
    your third felony conviction and . . . three
    felony convictions in theory is a big deal
    problem for anybody in your position. Do you
    understand that?" (emphasis added).
    Defendant indicated that he understood.
    Next, the court informed defendant that, to receive a
    three-year prison term, he had to meet certain conditions during
    the period of his release prior to sentencing.   Specifically, the
    court told defendant that he had to truthfully discuss his case
    with the Department of Probation, refrain from committing new
    crimes and return to court for sentencing.   The court further
    stated:
    "Pay attention. . . . If you comply with
    those three conditions . . . . then you are
    guaranteed the three years with the two years
    post-release supervision. If you violate any
    of those conditions, I'll decide what's the
    nature of the violation, whether it is true
    or not and if I decide that you violated one
    of the conditions, I don't have to give you
    the three years with the two years. I might,
    but I don't have to, and I could
    theoretically sentence you up to 12 years.
    If you violate any of three conditions and I
    decide that you did violate one of those
    conditions or all of them or some of them,
    you will not get your plea back, your plea
    will remain and I'll do what I think is
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    appropriate having decided the validity of
    the supposed violation."
    Defendant responded that he understood this explanation of the
    conditions of the plea and the consequences of failing to fulfill
    them.
    The court proceeded to arraign defendant on a predicate
    felony statement which was filed by the People and alleged that
    he had a predicate felony conviction for attempted criminal
    possession of a weapon in the second degree.   Defendant declined
    to challenge the validity of that predicate felony conviction,
    and he was adjudicated a second felony offender previously
    convicted of a violent felony.    The court declared, "He's a
    violent predicate which will put him in the range which will make
    the sentence that I promised a legal sentence."   The court
    ordered an adjournment of approximately two months for
    fulfillment of the plea conditions and sentencing.
    Significantly, though, contrary to the court's
    statement, while a three-year prison term is within the lawful
    sentencing range for a second felony drug offender convicted of
    third-degree criminal sale of a controlled substance (see Penal
    Law § 70.70 [3] [b] [i]), it was not a sentence lawfully
    available to defendant in light of his distinct predicate status.
    Rather, because defendant was a second felony drug offender
    previously convicted of a violent felony, he faced a statutory
    sentencing range of six to fifteen years in prison on his third-
    degree drug sale conviction (see Penal Law § 70.70 [4] [b] [i]).
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    But, the court was not informed of this issue and never indicated
    that it learned of the potential problem on its own.
    Apparently, at some point after the plea proceeding,
    defendant was arrested for marijuana and trespass offenses.
    About three weeks after the entry of defendant's plea, the court
    held a hearing pursuant to People v Outley (80 NY2d 702 [1993])
    to determine whether defendant had violated the terms of his plea
    agreement.    At the hearing, a police officer testified that the
    officer had arrested defendant upon seeing him smoking marijuana
    in the lobby of a public housing building.    In response to that
    testimony, defendant presented a notarized letter from his aunt,
    who alleged that she was a resident of the building at issue and
    that defendant had been in her apartment at the time of the
    arrest.   The court provided the defense with a short recess to
    enable the aunt to testify at the hearing, but at the end of the
    recess, defense counsel notified the court that the defense would
    rest without calling defendant's aunt to the stand.    After
    hearing the parties' arguments, the court found that defendant
    had violated the terms of the plea by engaging in misconduct
    constituting criminal possession of marihuana in the fifth degree
    (see Penal Law § 221.10 [1]).
    About a month later on the date of the scheduled
    sentencing proceeding, the parties appeared in court and
    discussed the People's written submissions in support of
    enhancing defendant's sentence.    Defense counsel informed the
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    court that he had not reviewed those submissions.      The court
    said, "[O]bviously the sentence is going to be enhanced.      I
    announced that the last time."    Nonetheless, the court adjourned
    the case so that the court and counsel could have more time to
    review the People's arguments.
    Two weeks later, the parties appeared before the court
    for sentencing.   Early in the proceeding, the court reiterated
    that defendant had violated the terms of his plea deal, and the
    court noted that, based on the People's written submissions, it
    appeared that defendant had tried to arrange for the presentation
    of false evidence of an alibi in connection with his post-plea
    marijuana offense.   After the prosecutor's argument in favor of
    an enhanced sentence, the court told defendant and defense
    counsel that they could "say anything [they] want[ed] on the
    issue of the appropriate sentence within the range that the law
    allows, and the circumstances --."       Counsel interrupted and
    commenced his argument in opposition to the enhancement of
    defendant's sentence, positing that the evidence at the Outley
    hearing had not revealed misconduct that warranted an enhanced
    sentence.   Defendant declined to make any statement about the
    proposed sentence enhancement, and after a brief exchange between
    counsel and the prosecutor, the parties brought their arguments
    to a close.
    The court again summarized the conditions of the plea
    and reiterated its prior finding that defendant had failed to
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    abide by those conditions when he committed the marijuana
    offense.   Noting that it was discussing an "enhanced sentence,"
    the court condemned defendant's efforts to present a false alibi
    to cover up his violation of the plea conditions.   The court
    stated, "So he's sentenced to 6 years [in prison], which is an
    appropriate enhancement in view of all of the things that went on
    related to this case," adding that defendant would also serve a
    two-year term of post-release supervision.   Counsel asked the
    court to "note [his] exception" without elaborating on the
    grounds for the objection, and the court so noted it.   The court
    then repeated its pronouncement of the sentence and concluded the
    proceeding.   Subsequently, defendant appealed.
    A divided panel of the Appellate Division reversed the
    judgment, on the law, vacated defendant's guilty plea and
    remanded the matter to Supreme Court for further proceedings (see
    People v Williams, 123 AD3d 240, 241-247 [1st Dept 2014]).      The
    court concluded that defendant's claim fell within the exception
    to the preservation rule because Supreme Court's alleged error in
    promising defendant an unlawful three-year prison term in
    exchange for his guilty plea constituted a due process violation
    which presented a question of law for appellate review despite
    the absence of proper preservation (see 
    id. at 244,
    citing People
    v Louree, 8 NY3d 541, 545-546 [2007]).   On the merits, the court
    ruled that the lower court's error affected the voluntariness of
    defendant's plea, not simply his sentencing expectations, and
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    that therefore vacatur of the plea was the only proper remedy
    (see 
    id. at 245-247).
              Two Justices dissented and voted to affirm (see 
    id. at 247-250
    [Tom, J.P., dissenting]).     In the dissent's view,
    defendant had to, and failed to, preserve his challenge to the
    legality of his guilty plea because the exception to the
    preservation rule does not apply where, as here, a defendant's
    claim implicates only his or her sentencing expectations and not
    the voluntariness of the plea itself (see 
    id. at 247-248).
        The
    dissent further opined that defendant's claim lacked merit
    because the court's imposition of a lawful six-year prison term
    within the range of punishments promised in the event that
    defendant violated the terms of the plea agreement met his
    legitimate sentencing expectations, notwithstanding that the
    court's promise of a three-year prison term based on his
    potential compliance with those terms would have resulted in an
    illegal sentence for the offense to which he pleaded guilty (see
    
    id. at 248-250).
      One of the Appellate Division dissenters
    granted the People leave to appeal, and we now reverse on
    preservation grounds.
    II.
    "Preservation--or, more precisely, the lack of
    preservation--frequently accounts for the disposition of criminal
    cases in this Court" (People v Hawkins, 11 NY3d 484, 491 [2008]),
    and we enforce the preservation doctrine with equal regularity in
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    the trial and plea contexts, remaining mindful that the necessity
    of preservation is the rule rather than the exception (see e.g.
    People v Leach, __NY3d__, 2016 NY Slip Op 01253, *1-*2 [2016];
    People v Crowder, 24 NY3d 1134, 1136-1137 [2015]; People v
    Clemons, 49 NY2d 795, 796 [1980]; People v Pascale, 48 NY2d 997,
    997-998 [1980]; People v Warren, 47 NY2d 740, 741 [1979]; People
    v Delancy, 48 NY2d 972, 973-974 [1979]; People v Adams, 46 NY2d
    1047, 1047-1048 [1979]).   Thus, we have held that, generally, "in
    order to preserve a challenge to the factual sufficiency of a
    plea allocution there must have been a motion to withdraw the
    plea under CPL 220.60 (3)" (Lopez, 71 NY2d at 665; see Claudio,
    64 NY2d at 858-859).   And, "[u]nder certain circumstances, this
    preservation requirement extends to challenges to the
    voluntariness of a guilty plea" (People v Peque, 22 NY3d 168, 182
    [2013]; see People v Tyrell, 22 NY3d 359, 363-364 [2013]; People
    v Murray, 15 NY3d 725, 726 [2010]; People v Toxey, 86 NY2d 725,
    726 [1995]; Delancy, 48 NY2d at 973-974).   On the other hand, in
    People v Lopez (71 NY2d 662), we concluded that, where a pleading
    defendant's recitation of the facts of his or her offense clearly
    casts doubt on his or her guilt and the court makes no further
    inquiry, the defendant does not have to preserve a claim of fatal
    error in the allocution because, as noted above, "the court's
    attention should have been instantly drawn to the problem, and
    the salutary purpose of the preservation rule is arguably not
    jeopardized" (id. at 666).   In People v Louree (8 NY3d 541
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    [2007]), we adopted a variant of the Lopez exception applicable
    to the defendant's claim that his plea was involuntary under
    People v Catu (4 NY3d 242 [2005]) based on the particular
    circumstances of the defendant's plea and sentencing proceedings
    (see Louree, 8 NY3d at 546).
    The Appellate Division in the instant case relied
    principally on Louree for its determination that defendant did
    not need to preserve his claim.   In doing so, that court viewed
    Louree as holding that a defendant never has to preserve a claim
    that the court violated due process by accepting a guilty plea
    without informing the defendant of the direct consequences of the
    plea (see Williams, 123 AD3d at 244 ["While such a challenge (to
    a plea) must ordinarily be preserved by a motion to withdraw the
    plea under CPL 220.60 (3), this does not apply where the trial
    court failed to fulfill its obligations to ensure that a plea
    conformed with due process"], citing Louree, 8 NY3d at 545-546;
    see also 
    id. at 242
    ["First, defendant's constitutional claim
    that his plea violated due process because it was induced by an
    illegal promise need not be preserved"]).   But, the Appellate
    Division misapprehended our decisions in Louree and subsequent
    cases, which clearly do not categorically exempt due process
    claims from the preservation rule in the plea context.
    In that regard, in Louree, we excused defendant's
    failure to preserve his Catu claim not because the claim
    implicated due process, but because the defendant had no
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    practical ability to assert that the plea was invalid prior to
    the imposition of sentence.   Specifically, while we stated that,
    "where a trial judge does not fulfill the obligation to advise a
    defendant of postrelease supervision during the plea allocution,
    the defendant may challenge the plea as not knowing, voluntary
    and intelligent on direct appeal, notwithstanding the absence of
    a postallocution motion," we explained that we were applying an
    exception to the preservation rule because we could not "shut our
    eyes to the actual or practical unavailability of either a motion
    to withdraw the plea" or a CPL 440.10 motion, noting that "a
    defendant can hardly be expected to move to withdraw his plea on
    a ground of which he has no knowledge" (id. at 546).   We further
    observed that, "if the trial judge informs the defendant of
    postrelease supervision during the course of sentencing, as also
    happened here, a defendant may no longer move to withdraw the
    plea since a motion may only be made under CPL 220.60 (3) '[a]t
    any time before the imposition of sentence'" (id.).    Hence, our
    decision to relieve the defendant of any preservation obligation
    in Louree stemmed in significant part from the defendant's
    inability to object to the legality of his plea prior to the
    final imposition of sentence, and not just from the nature of his
    due process claim.   As a result, Louree does not support the
    Appellate Division's apparent conclusion that, because defendant
    here attacked the voluntariness of his plea on due process
    grounds, his claim was categorically exempt from the preservation
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    rule.
    Importantly, after Louree was handed down and prior to
    the Appellate Division's decision here, we dispelled any notion
    that Louree establishes such a broad exception to the
    preservation rule.   So it was that, in People v Peque (22 NY3d at
    168), we reiterated the general rule that, even where the
    defendant challenges a plea on voluntariness and due process
    grounds, he or she must preserve that challenge via timely
    objection depending on the circumstances of the case, and we
    clarified that, "[t]aken together, Lopez and Louree establish
    that where a defendant has no practical ability to object to an
    error in a plea allocution which is clear from the face of the
    record, preservation is not required" (id. at 182).     In that very
    decision, we also concluded that a defendant could have
    preserved, and failed to preserve, his contention that the trial
    court's failure to apprise him that deportation was a potential
    consequence of his plea rendered the plea involuntary (see 
    id. at 183).
               Thus, as Louree indicates and Peque crystallizes, if a
    defect in a plea allocution is clear on the face of the record
    and implicates due process, the defendant nonetheless must
    preserve his or her claim that the defect made the plea
    involuntary unless the defendant has no practical ability to do
    so.   Moreover, after the Appellate Division decided this case, we
    again emphasized that a defendant must object to the court's
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    failure to apprise him or her of the consequences of a guilty
    plea if he or she has the opportunity to lodge such an objection
    (see People v Crowder, 24 NY3d 1134, 1136-1137 [2014]; see also
    People v Conceicao, 26 NY3d 375, 381 [2015] ["If a defendant has
    an opportunity to seek relief from the sentencing court, he must
    preserve his challenge to the plea"]).
    It is no wonder, then, that even defendant does not
    embrace the Appellate Division's rationale for dispensing with
    the preservation requirement here, but merely argues that he is
    entitled to the benefit of the exception to the preservation rule
    based on the absence of a chance to raise his claim below.    In
    that regard, defendant contends that Supreme Court violated due
    process and improperly induced his guilty plea because it failed
    to tell him at the plea proceeding that it could not legally
    order a three-year prison term, which the court promised him in
    exchange for his guilty plea and his compliance with the plea
    conditions, upon defendant's conviction for third-degree drug
    sale in light of defendant's status as a second felony drug
    offender with a prior violent felony conviction.   By defendant's
    reckoning, since the court never announced that the promised
    sentence was illegal and his lawyer did not display any
    recognition of the unlawfulness of the proposed sentence on the
    record, neither defendant nor counsel had any practical ability
    to challenge the voluntariness of the plea on grounds of which
    they were unaware.
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    However, even assuming that the error alleged by
    defendant impacts the voluntariness of the plea as opposed to his
    sentencing expectations -- an issue hotly contested by the
    parties and unaddressed by our decision today -- defendant could
    have raised his current claim prior to the final imposition of
    sentence in Supreme Court, and therefore, he was obligated to,
    and failed to, preserve his claim.1
    As our previous summary of the record shows, and
    contrary to the assertions of our dissenting colleagues (see
    dissenting op. at 12-13), the defense had multiple opportunities
    to preserve defendant's current challenge to his plea and seek
    clarification of the matter, as such opportunities arose from,
    inter alia: the court's comment at the plea proceeding about its
    uncertainty of the legality of the promised sentencing options;
    the court's statements at the plea proceeding about the
    determinative nature of defendant's predicate felony offender
    status; the numerous adjournments, the Outley hearing and the
    post-hearing court appearance that transpired between the plea
    and sentencing proceedings, which could have allowed counsel and
    defendant to inquire further into the legality of the promised
    sentencing options and defendant's understanding of the plea; and
    1
    Notably, if, as the People maintain, defendant's claim
    raises an issue pertaining to his sentencing expectations and not
    the voluntariness of his plea, it is undisputed that such a claim
    would have to be preserved to at least the same extent as a
    challenge that genuinely relates to the voluntariness of the
    plea.
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    the court's comments at sentencing, which offered an opening for
    counsel to confirm the legality of the court's sentencing options
    and its effect on the validity of the plea.   By failing to seize
    upon these opportunities to object or seek additional pertinent
    information, defense counsel failed to preserve defendant's claim
    for appellate review (see generally Conceicao, 26 NY3d at 381;
    Crowder, 24 NY3d at 1136-1137; see People v Murray, 15 NY3d 725,
    727 [2010] [where a practical ability to object to the validity
    of the plea arose at the sentencing proceeding, defendant's
    failure to object or move to withdraw the plea rendered his claim
    unpreserved]; cf. Conceicao, 26 NY3d at 383-384 [observing that,
    although defendants did not have to preserve claims for plea
    vacatur due to lack of information and circumstances supplying a
    practical ability to object, adjournments in the proceedings and
    further presentence litigation strengthened attorneys' and
    defendants' comprehension of the consequences of the pleas]).2
    2
    Our dissenting colleagues contend that "[i]t is
    particularly unjust to require preservation in a case such as the
    one before us, where the error escaped discovery of all those
    involved and trained in the law--the judge, prosecutor and
    defense counsel" (dissenting op. at 10-11). This comment appears
    to be a mere rephrasing of the dissent's argument that defendant
    lacked a practical opportunity to raise his current claim before
    the court of first instance. We simply disagree because the
    record discloses several instances where, in light of the court's
    comments and the course of the proceedings, the defense could
    have made an objection based on, or sought clarification of, the
    legality of a three-year prison term upon his conviction. If the
    dissent means to suggest that defendant did not have to preserve
    his claim, regardless of any opportunity to do so, because the
    record does not affirmatively reveal that he and his attorney had
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    Similarly, to the extent defendant suggests that the
    court also improperly made him a firm promise of a three-year
    prison term even if he committed a new crime, he could just as
    easily have preserved that claim as well.   At the court
    appearance following the Outley hearing, the court announced its
    intention to enhance the sentence beyond the promised three-year
    prison term based on defendant's commission of a new marijuana
    offense.   Later, at sentencing, the court again referenced its
    plan to increase the sentence, and prior to the end of the
    proceeding, it proposed to increase the sentence to a six-year
    prison term.   In response, defendant and his attorney could have
    objected to the court's plan to dishonor the purported promise of
    a three-year prison term in connection with defendant's violation
    of the plea conditions if such a promise, or the legal viability
    actual knowledge that the court committed an alleged error, such
    an assertion is untenable. Although we have excused the failure
    to use the objection method of preservation to preserve a claim
    of a fundamental defect in a plea based in part on the lack of an
    opportunity for the defendant to have discovered the error, we
    have never held, either in the plea context or elsewhere, that
    the defendant's lack of actual knowledge that an error has
    occurred, despite an opportunity to learn of the error, may
    excuse the defendant from having to preserve his or her claim via
    objection. Indeed, such a theory would swallow the preservation
    doctrine whole, thereby eviscerating an essential limit on our
    jurisdiction (see People v Turriago, 90 NY2d 77, 80 [1997];
    People v Kelly, 5 NY3d 116, 119 [2005]), because virtually every
    defendant could rely on a record silent on the subject of the
    defendant's actual knowledge to argue that he or she did not in
    fact comprehend the erroneous nature of the court's actions and
    therefore had no obligation to object. We reject this sweeping
    knowledge-based exception to the preservation rule.
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    of it, had motivated defendant to plead guilty.    Since the
    defense did not inquire into the legality of a three-year prison
    term in the event of a violation of the plea terms or demand that
    the court honor the alleged promise, defendant failed to preserve
    any complaint about the court's enhancement of the sentence and
    advisements regarding what would occur in the event of a
    violation.
    Finally, given defendant's failure to preserve his
    present claim that his plea must be vacated, we express no
    opinion on the merits of the claim, and we remit the case to the
    Appellate Division, which may decide whether to review
    defendant's unpreserved challenge to the validity of his plea as
    a matter of discretion in the interest of justice.    As a result,
    just as our decision on procedural grounds should not be read to
    suggest that defendant would have been entitled to vacatur of his
    plea had he preserved his current claim, it also should not be
    taken as an endorsement of Supreme Court's handling of the
    proceedings below, which all parties agree was far from ideal
    irrespective of the ultimate validity of the plea.3
    3
    Notably, the Legislature is aware that illegal sentences
    may sometimes be imposed and has created a mechanism to address
    this problem. That mechanism, CPL 440.40, authorizes the court,
    upon the People's motion, to vacate an illegal sentence within
    one year of imposition. Had defendant received the illegal
    sentence that was to his benefit on his third-degree drug sale
    conviction, the People would have had only one year to move to
    vacate the illegal sentence (see Campbell v Pesce, 60 NY2d 165,
    168-69 [1983]).
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    III.
    Because defendant, via counsel, could have raised his
    current challenge to the propriety of his guilty plea prior to
    the imposition of sentence, he was obligated to preserve his
    claim, and his failure to object to the plea in the court of
    first instance precludes our review of his present contention.
    Accordingly, the order of the Appellate Division should be
    reversed and the case remitted to that court for consideration of
    the facts and issues raised but not determined on the appeal to
    that court.
    - 19 -
    People of the State of New York v Christian Williams
    No. 36
    RIVERA, J.(dissenting):
    On this appeal, we are presented with a bargained-for
    plea based on an illegal minimum incarceratory sentence, offered
    as an inducement for defendant's waiver of his constitutionally
    protected right to liberty and the guarantees afforded by his
    right to trial.   In violation of defendant's due process rights,
    the judge at the plea hearing failed to ensure the defendant
    understood the direct sentencing consequences of the plea, and
    wrongly informed defendant that the offer was a legal minimum
    rather than one precluded by law.   Thus, since defendant's plea
    was not knowing, voluntary and intelligent, the plea must be
    vacated.   No less important to my determination that this plea
    cannot stand is the indisputable fact that the judicial practice
    employed in defendant's case jeopardizes the public confidence in
    plea bargaining and the criminal justice system as a whole.
    Unlike the majority, I conclude that we are not
    procedurally foreclosed from addressing the merits of defendant's
    claims on direct appeal.   Quite simply, the usual rules of
    preservation do not govern our review because this is far from
    the usual case.   According to the record, the judge represented
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    to defendant that under the law, in exchange for pleading guilty,
    he could receive a sentence of three years incarceration,
    followed by two years of postrelease supervision.   The judge
    failed to independently confirm whether the sentence promise was
    in fact legal, and instead deferred that determination to "the
    learned folks in the prosecution's office."   However, the judge's
    reliance on the work of others was misplaced because the
    information available to the court at the plea established that
    the only lawful minimum incarceratory time applicable to
    defendant was six years--a fact the judge failed to discuss with
    defendant before he entered his plea.   Six years imprisonment is
    coincidentally also the sentence imposed by the judge after he
    determined that defendant's sentence should be enhanced for
    violation of a plea condition, namely defendant's possession of
    marijuana in the lobby of a residential building, conduct for
    which defendant was never criminally charged.
    I.
    Under our laws, the judge is responsible for accepting
    a plea after ensuring its validity, and the judge is the sole
    person authorized to impose a sentence.   It is the "trial court
    [which] has the constitutional duty to ensure that a defendant,
    before pleading guilty, has a full understanding of what the plea
    connotes and its consequences" (People v Louree, 8 NY3d 541, 544
    [2007], quoting People v Ford, 86 NY2d 397, 402-402 [1995]).
    - 2 -
    - 3 -                         No. 36
    Thus, the trial judge must ensure "that the
    record...[is] clear that the plea represents a voluntary and
    intelligent choice among the alternative courses of action open
    to the defendant" (People v Belliard, 20 NY3d 381, 385 [2013]
    [internal quotations and citations omitted]).   In addition, the
    "sentence is primarily a judicial responsibility" and so the
    "judge may not ignore those provisions of law designed to assure
    that an appropriate sentence is imposed" (People v Selikoff, 35
    NY2d 227, 238, 240-241 [1974], cert denied 35 NY2d 227 [1975];
    see also CPL 380.20 ["The court must pronounce sentence in every
    case where a conviction is entered"];   Garner v New York State
    Dept. of Correctional Services, 10 NY3d 358, 362 [2008],
    superceded by statute People ex rel. Joseph II. v Supt. of
    Southport Correctional Facility, 15 NY3d 126 [2010] ["the
    sentencing judge—and only the sentencing judge—is authorized to
    pronounce the PRS component of a defendant's sentence"]).
    When a plea fails to comply with the due process
    requirement that the plea represent a "voluntary, knowing and
    intelligent choice among alternative courses of action" (People v
    Catu, 4 NY3d 242, 245 [2005], quoting Ford, 86 NY2d at 403), the
    plea must be vacated (People v Hill, 9 NY3d 189, 193 [2007];
    Catu, 4 NY3d at 244).   Where, as here, the plea is based on an
    illegal minimum period of incarceration, the plea is defective at
    its inception, because defendant cannot have made a knowing,
    voluntary and intelligent decision to plead when he did not have
    - 3 -
    - 4 -                           No. 36
    knowledge that his bargained-for sentence was half the legal
    minimum (see Catu, 4 NY3d at 245 [failure of the court to advise
    defendant of postrelease supervision required reversal of the
    conviction]).    Moreover, the requirements of due process refer
    not to illusory plea offers, but to plea offers that can in fact,
    and under law, be fulfilled (see Selikoff, 35 NY2d at 241).
    "Thus, any sentence 'promise' at the time of plea is, as a matter
    of law and strong public policy, conditioned upon its being
    lawful and appropriate...."   (id. at 238).   Therefore, a court
    must also ensure that a defendant's bargained-for-benefit is a
    lawful promise.    When a court fails to do so, and treats as
    wholly valid a plea that is constitutionally defective, a
    defendant may seek to be relieved from the plea bargain by
    vacating the plea   (People v Cameron, 83 NY2d 838, 839 [1994]).
    Furthermore, both the United States Supreme Court and
    this Court have determined that "a guilty plea induced by an
    unfulfilled promise either must be vacated or the promise
    honored" (Selikoff, 35 NY2d at 241, citing Santobello v New York,
    
    404 U.S. 257
    , 260 [1971]).   In the case of an illegal sentencing
    promise, the judge's only option is to vacate the plea because
    specific performance of the agreed upon minimum prison term is
    unavailable.    However, the judge here failed to follow any lawful
    course to remedy the due process violation inherent in the plea,
    and instead imposed a sentence that was double the minimum
    offered to defendant.   Defendant's plea must therefore be
    - 4 -
    - 5 -                        No. 36
    vacated.
    The People contend that defendant's plea was knowing
    and voluntary because defendant understood that if he breached
    the plea conditions imposed by the court he faced a maximum
    sentence of 12 years' imprisonment, and the court met defendant's
    legitimate sentencing expectations by imposing a six-year prison
    term.       The sentence imposed is irrelevant to the matter at hand
    because "the defect lies in the plea itself and not in the
    resulting sentence" (Hill, 9 NY3d at 191), as a consequence "the
    court[] violated defendant's due process rights--not the
    defendant's sentencing expectations" (id. at 193).
    In any event, the People's argument is based on their
    misreading of the plea proceeding record.      As that record
    establishes, the judge never retreated from three years as the
    baseline for defendant's minimum sentence, and on several
    occasions expressly measured defendant's sentence against that
    three-year floor.      For example, in describing the beneficial
    sentence defendant would receive in exchange for his guilty plea,
    the judge told defendant that under the high end of the
    sentencing spectrum he could have imposed up to 12 years
    imprisonment--which as it turned out was incorrect1--and reminded
    defendant that "[y]ou've been given a chance to plead guilty and
    you are going to receive a three-year sentence with two years
    1
    The correct sentence was a determinate term between 6 and
    15 years, followed by a term of post-release supervision between
    1½ and 3 years (see Penal Law § 70.70[4][b][i]).
    - 5 -
    - 6 -                        No. 36
    post-release supervision."    When discussing the plea conditions,
    the judge said that if defendant complied he was "guaranteed the
    three years with the two years post-release supervision," and if
    he did not comply, he was still eligible to receive the three-
    year term.    Thus, the judge continued to hold out three years as
    the minimum from which any sentence would be determined.    Of
    course, the judge could not sentence defendant to a legal term of
    three years, and thus even under the People's analysis,
    defendant's reliance on that minimum rendered his plea
    involuntary.
    The People further argue that a sentencing court has
    the inherent power to correct an illegal sentence (People v
    Williams, 87 NY2d 1014, 1015 [1996]).    True enough, but a court
    could not have corrected the sentence to coincide with the plea
    offer.    Put another way, defendant could not be legally sentenced
    to three years' imprisonment for the crime to which he pled
    guilty.
    Nevertheless, the People contend that under People v
    Collier if the original promise could not be imposed, the
    sentencing court could impose another lawful sentence as long as
    it "comports with defendant's legitimate expectations" (22 NY3d
    429, 434 [2013]).    According to the People, under that principle,
    because defendant received the legal statutory minimum of six
    years, the ultimate sentence imposed fulfilled his expectations
    of a "minimum" sentence.    The People apparently ignore that the
    - 6 -
    - 7 -                           No. 36
    original sentencing offer was a minimum of three years, not six,
    and that three years was the number of consequence to defendant.
    As this Court has recognized "the overwhelming consideration for
    the defendant is whether [he or she] will be imprisoned and for
    how long" (People v Gravino, 14 NY3d 546, 559 [2010]).
    The People's further claim that if defendant had
    complied with the plea conditions he could have received a three-
    year sentence by repleading to a lesser offense.    Yet for
    defendant to plead down, the original plea must be vacated--
    exactly the relief the People oppose and which defendant seeks on
    this appeal.2
    To the extent the People argue that defendant could be
    subjected to a legal sentence greater than the three years'
    imprisonment he was promised, we have never held that a court may
    impose a sentence that exceeds the minimum period expressly
    offered as an inducement for a guilty plea, and our case law
    supports the opposite conclusion.3    Cases where a sentencing
    2
    It is worth noting that defendant was sentenced in January
    of 2012. If he had replead at that point to the originally
    agreed on three-year sentence, his sentence would already be
    complete.
    3
    The Court's holding in People v DeValle (94 NY2d 870
    [2000]), is not to the contrary. In that case, the Court held
    that the trial court had inherent power to correct an illegal
    sentence where defendant did not seek withdrawal of the plea, and
    also failed to establish detrimental reliance on the illegal
    sentence that could not be addressed by returning him to his
    pre-plea status, if he so desired. Here, defendant seeks the
    remedy the Court in DeValle recognized as appropriately available
    to the defendant on the facts of that case. Thus, unlike the
    - 7 -
    - 8 -                          No. 36
    court "fixed" an illegal sentence through imposition of a lawful
    sentence are distinguishable because none of them dealt with an
    increase in the minimum amount of time defendant could expect.
    In Collier, defendant, as part of his plea bargain, pled guilty
    to two counts of robbery and received a sentence of 25 years in
    prison on the first count, and five years on the other count --
    to run either consecutively or concurrently based on the judge's
    discretion (22 NY3d at 431).    The judge imposed the sentences
    consecutively and defendant appealed, arguing both that the
    sentence was excessive and that the five-year sentence was
    illegal (id. at 432).   The Appellate Division agreed that the
    five-year sentence was illegal, vacated the sentence, and
    remitted the matter for resentencing (id.).     Defendant was
    resentenced to concurrent terms of 25 years and 10 years (id.).
    Defendant appealed, arguing that his plea had to be vacated
    because his expectation when pleading guilty on the first plea
    had been five years (id.).     However, our Court upheld defendant's
    sentence of 25 years because it fit within defendant's original
    expectation of a sentence from 25 years to 30 years' imprisonment
    (id. at 433-434).
    In Williams, this Court rejected a defendant's
    challenge to a resentence that imposed an enhanced maximum period
    defendant in DeValle who, in essence, demanded specific
    performance of an illegal sentence, defendant here seeks no more
    than what the law allows, namely to be returned to his pre-plea
    status.
    - 8 -
    - 9 -                          No. 36
    of incarceration directly within the period expressly explained
    to defendant at the time of the plea (id.). As the facts of that
    case establish, defendant was originally sentenced to an illegal
    indeterminate prison term of 3 1/2 to 7 years, and thereafter
    resentenced to a lawful term of 3 1/2 to 10 1/2 years'
    imprisonment.   The Court concluded that defendant did not have a
    legitimate expectation of finality in the prior illegal sentence
    because the judge had informed defendant in advance that he was
    pleading to a crime that, by law, allowed the judge "to impose a
    sentence of up to 15 years" (id.).      As relevant to the instant
    appeal, the defendant's minimum of 3 1/2 years imprisonment went
    unchanged from the illegal sentence to the resentence.     Thus,
    this Court properly focused on the defendant's maximum sentencing
    exposure.
    Similarly, the Court held in People v Murray that a
    judge does not "arbitrarily trifle[] with the legitimate
    expectations of [a] defendant based on the plea" when the
    defendant is told that the plea is conditional, and advised of
    the sentence to be imposed should defendant violate the court's
    terms (15 NY3d 725, 726 [2010]). In Murray, the judge informed
    the defendant that he would "probably" receive youthful offender
    status and a ninth-month sentence if he complied with certain
    plea conditions set by the court.    Otherwise, the court would
    sentence the defendant as an adult (id.).      When the defendant
    failed to comply, the court imposed an adult sentence, which this
    - 9 -
    - 10 -                          No. 36
    Court upheld on appeal as "rooted in the terms of defendant's
    plea and evident to all concerned" (id.).    The court in Murray
    had expressly stated that the consequence of a violation of the
    plea condition was imposition of a sentence wholly unlike the
    sentence available to a youthful offender.   In contrast, the
    judge in defendant's case always indicated that the sentence was
    based on a three-year minimum imprisonment term.
    The decisions in Collier, Williams and Murray
    presuppose that a defendant who pleads guilty while fully aware
    of the period of incarceration attached to the plea is making a
    choice to bargain away freedom for at least the minimum, and up
    to the maximum, as described by the court.   In accordance with
    this guiding principle, defendant's plea must be vacated because
    it was based on a three-year illegal minimum sentence, which the
    court communicated as the lowest end of the applicable sentencing
    range.
    II.
    When a judge fails "to ensure that defendant
    understands the nature of the charge and that the plea is
    intelligently entered," as a matter of due process and
    fundamental fairness, it is unreasonable to demand preservation
    by objection.   It is particularly unjust to require preservation
    in a case such as the one before us, where the error escaped
    discovery of all those involved and trained in the law--the
    - 10 -
    - 11 -                          No. 36
    judge, prosecutor and defense counsel.
    Moreover, the preservation rule imposed by the majority
    is not unqualifiedly required by our case law under the
    circumstances presented in this appeal.   Preservation serves
    important purposes.   It allows a claim to be brought to the trial
    court's attention in order to "provide the opportunity for cure
    before a verdict is reached and a cure is no longer possible,"
    "advance[] the truth-seeking purpose of the trial" and ensure
    "the goal of swift and final determinations of the guilt or
    nonguilt of a defendant" (People v Gray, 86 NY2d 10, 20-21
    [1995]).   However, we have recognized that rules of preservation
    must give way under circumstances where "the salutary purpose of
    the preservation rule is arguably not jeopardized" (People v
    Lopez, 71 NY2d 662, 666 [1988]).   Exceptions to preservation are
    narrow, but not so restrictive as to be meaningless.
    Thus, the Court recognized in Lopez that preservation
    is not required in the "rare case" where the voluntariness of the
    plea is called into question by a defendant's factual recitation
    negating an essential element of the crime, and the court fails
    to adequately undertake its duty-bound inquiry to ensure the
    defendant understands the charge and plea (see id.).   In such a
    case "the court's attention should have been instantly drawn to
    the problem" (id.).   In Louree, the Court employed a pragmatic
    approach to preservation, and reviewed on direct appeal a Catu
    violation, because the Court recognized "the actual or practical
    - 11 -
    - 12 -                         No. 36
    unavailability" of a motion to challenge a plea which cannot be
    "knowing, voluntary and intelligent if a defendant is ignorant of
    a direct consequence because of a deficiently conducted
    allocution" (Louree, 8 NY3d at 545-546).
    Defendant's case for direct appellate review to our
    Court, notwithstanding the lack of a postallocution motion, is at
    least as, if not more, compelling as these cases.   For example,
    in Lopez, the Court made clear that preservation is not required
    when a judge fails, in accordance with a judge's constitutional
    duty, to make an additional inquiry once the voluntariness of the
    plea is placed in question during the allocution (71 NY2d at
    666).    In defendant's case the illegality of the sentence offer
    was similarly evident from the record.   Yet, the judge proceeded
    to inform defendant that the offer was a legal minimum term of
    incarceration, without first having confirmed the statutory
    sentencing range.   Thus, the judge failed to take appropriate
    steps to ensure that defendant understood the nature of the
    sentencing offer.
    As for the exception recognized in Louree, here
    defendant had no genuine reasonable opportunity to present the
    judge with a counter view of the inherently defective plea offer.
    In Louree, the lack of opportunity was due to the timing of the
    error.   The trial judge did not mention postrelease supervision
    at the allocation, depriving the defendant of information
    necessary to determine whether to move to withdraw his plea.
    - 12 -
    - 13 -                         No. 36
    Nevertheless, this Court did not require that defendant
    investigate whether the judge's description of the sentence was
    correct.   When the trial judge informed the defendant at
    sentencing about postrelease supervision, it was too late because
    a motion to withdraw a plea may only be made under CPL 220.60 (3)
    before the imposition of sentence (Louree, 8 NY3d at 546).
    Here, once the judge stated at the plea hearing that
    the minimum was lawful, defendant relied on that statement and
    had no reason for further inquiry into the legality of the plea
    offer.   Like the defendant in Louree, defendant Williams based
    his decision to plead guilty on the judge's error, and should be
    viewed as similarly lacking the opportunity to move to withdraw.
    Moreover, application of the preservation requirement here
    presupposes defendant's prior awareness of the very error that
    the judge was required to present to the defendant (see People v
    Peque, 22 NY3d 168, 216 [2013][Lippman C.J., dissenting] ["A
    preservation requirement presumes knowledge that would make the
    advisement unnecessary—a classic catch 22"]). However, "if the
    prosecutor, defense counsel and the court all suffered from the
    same misunderstanding" about the plea offer, "it would be
    unreasonable to conclude that defendant understood it" (People v
    Worden, 22 NY3d 982, 985 [2013]).4
    4
    The Majority is incorrect in its assertion that allowing
    defendant to bring a direct claim would "swallow the preservation
    doctrine whole" (majority op. at 16 fn 2). Here, defendant
    should be absolved from the normal preservation rules, not solely
    - 13 -
    - 14 -                          No. 36
    The circumstances of this case further illustrate the
    inapplicability of preservation to defendant's claim.    The nature
    of postallocution motion practice presumes that a defense
    attorney has a reason to question the validity of the plea
    process and the offer.   This makes sense in the context of a plea
    allocution, which involves a defendant's responses to questions
    from the judge, intended to identify a defendant's lack of
    understanding and volition, and where defense counsel, acting on
    behalf of the defendant, has reason to ensure the allocution
    meets constitutional requirements (see People v Tyrell, 22 NY3d
    359, 366 [2013] [plea was defective where "the records do not
    affirmatively demonstrate" that defendant understood the waiver
    and "there is a complete absence of discussion" by the court,
    defense counsel or defendant of the pertinent constitutional
    rights]; Lopez, 71 NY2d at 667 [trial court conducted a proper
    inquiry into defendant's allocation to ensure the factual
    sufficiency of defendants factual recitation]; People v Harris,
    61 NY2d 9, 17 [1983] ["a record that is silent will not overcome
    the presumption against waiver"]).     However, in the case before
    us, defense counsel negotiated the plea with the prosecutor and
    because he lacked actual knowledge of the error, as the Majority
    asserts, but because he relied on an assertion of the trial judge
    that the plea offer was based on a legal minimum sentence. When
    a court's statement creates the perception that no further
    investigation of a sentence is needed, defendant cannot be held
    responsible for relying on that statement.
    - 14 -
    - 15 -                           No. 36
    the court accepted the offer as lawful.    As a consequence
    defendant had no reason to question the legality of its terms.
    Application of the preservation rule to these facts
    absolves the court of its constitutional duty to ensure that
    defendant is informed of the direct consequences of his plea, and
    limits defendant's remedial options.   The majority states the
    defendant can request the Appellate Division exercise its
    interest of justice authority to grant him relief, (majority op.
    at 18) but there are no assurances that the court will be
    disposed in defendant's favor.   Here, two justices dissented,
    finding the plea comports with constitutional requirements.
    Alternatively, the majority states defendant can proceed with an
    ineffective assistance of counsel claim.   However, as with a Catu
    violation, the error here is apparent on the record and therefore
    an article 440 motion is improper (see CPL 440.10 [2] [b], [c];
    People v Cooks, 67 NY2d 100, 104 [1986] ["When...sufficient facts
    appear on the record to permit the question to be reviewed,
    sufficiency of the plea allocution can be reviewed only by direct
    appeal. Only in the unusual situation that sufficient facts with
    respect to the issue do not appear on the record is a CPL 440.10
    motion to vacate available as a means of review"]).   All the
    while, defendant has served more than the three year minimum he
    was promised.
    It seems apparent that the salutary purpose of the
    preservation rule is not furthered by refusing to consider
    - 15 -
    - 16 -                           No. 36
    defendant's claim on direct review to this Court (Lopez, 71 NY2d
    at 666).   Therefore, defendant should be permitted to pursue his
    challenge to the validity of the plea by direct appeal to us.
    III.
    Defendant's case is yet another reminder that our
    criminal justice system depends on the proper administration of
    plea bargains 
    (Santobello, 404 U.S. at 262
    ["'plea bargaining,' is
    an essential component of the administration of justice. Properly
    administered, it is to be encouraged"]).   As the United States
    Supreme Court has recognized, "ours is for the most part a system
    of pleas, not a system of trials" (Missouri v Frye, 132 SCt 1399,
    1407 [2012] [internal quotations and citations omitted]).   "In
    today's criminal justice system...the negotiation of a plea
    bargain, rather than the unfolding of a trial, is almost always
    the critical point for a defendant" (id. at 1407).   "[P]lea
    negotiation serves the ends of justice" (Selikoff, 35 NY2d at
    233).   More specifically, the final product of negotiation, the
    bargained-for promise, ensures the "prompt and largely final
    disposition of most criminal cases"; avoids the "corrosive impact
    of enforced idleness during pre-trial confinement for those who
    are denied release pending trial"; "protects the public from
    those accused persons who are prone to continue criminal conduct
    even while on pretrial release"; and "by shortening the time
    between charge and disposition, it enhances whatever may be the
    - 16 -
    - 17 -                          No. 36
    rehabilitative prospects of the guilty when they are ultimately
    imprisoned" 
    (Santobello, 404 U.S. at 261
    ).
    The legitimacy of our "bargain-for-sentence" criminal
    process is based on the assurance that where promises are made to
    induce a defendant's guilty plea, they are capable of being
    enforced (see 
    id. at 262
    ["when a plea rests in any significant
    degree on a promise or agreement of the prosecutor, so that it
    can be said to be part of the inducement or consideration, such
    promise must be fulfilled"]).    Without such assurances defendants
    would be loathe to engage in a risky high-stakes negotiation
    involving trading personal liberty interests in exchange for no
    benefit at all.   Thus, a criminal justice system that tolerates
    unenforceable bargains increases the potential "detrimental
    effect on the criminal justice system that will result should it
    come to be believed that the State can renege on its plea
    bargains with impunity notwithstanding defendant's performance"
    (People v Danny G., 61 NY2d 169, 176 [1984], quoting People v
    McConnell, 49 NY2d 340, 349 [1980]).     Similarly, because illegal
    sentencing promises can bear no assurance of enforcement, they
    undermine public confidence in plea bargains, and discourage
    defendants from entering these agreements.    It is therefore
    crucial that "the court in overseeing and supervising the
    delicate balancing of public and private interests in the process
    of plea bargaining" (Selikoff, 35 NY2d at 243), conduct its
    constitutional duty to ensure the lawfulness of promises leading
    - 17 -
    - 18 -                           No. 36
    to a defendant's incarceration.    The judge here failed to fulfill
    his duty, and the sole remedy for the defect presented on this
    record is to vacate the plea.
    *   *   *   *   *   *   *   *     *      *   *   *   *   *   *   *   *
    Order reversed and case remitted to the Appellate Division, First
    Department, for consideration of the facts and issues raised but
    not determined on the appeal to that court. Opinion by Judge
    Abdus-Salaam. Chief Judge DiFiore and Judges Pigott, Stein and
    Garcia concur. Judge Rivera dissents and votes to affirm in an
    opinion in which Judge Fahey concurs.
    Decided April 5, 2016
    - 18 -
    

Document Info

Docket Number: 36

Citation Numbers: 27 N.Y.3d 212, 51 N.E.3d 528

Filed Date: 4/5/2016

Precedential Status: Precedential

Modified Date: 1/13/2023