People v. Andre Collier


AD3 orders dated December 2, 2010, and January 5, 2012, modifying and then affirming a judgment of conviction. Decisions below: 79 AD3d 1162, 912 NYS2d 722; 91 AD3d 987, 935 NYS2d 737. Smith, J., granted leave to appeal September 18, 2012.


The defendant was originally promised and then received consecutive sentences of 25 years and 5 years on a plea bargain. The Appellate Division modified the judgment because 5 years was an illegally low sentence; they directed the trial court to either give the defendant the benefit of his bargain or allow him to withdraw his plea. On remand, the court gave him concurrent sentences of 25 years and 10 years, and denied his motion to withdraw his plea. Thereafter the Appellate Division affirmed the lower court, ruling that defendant was not entitled to his plea back because the resentence was overall a more favorable prison term. (Assigned counsel: Claude Castro, 355 Lexington Avenue, Suite 1400, NYC 10017.)

Issue before the Court: Whether the defendant was entitled to plea vacatur where the court had originally sentenced him to an illegally low 5-year sentence, to run consecutively to a legal 25-year determinate sentence on another count of the indictment, and, at the resentence, imposed a legal 10-year sentence, now concurrently with the 25-year sentence, thus lowering the aggregate term of imprisonment from 30 years to 25 years. 


Held: Plea vacatur was not required.  Although the defendant did not, and could not, get the 5 years he was promised, the lawful sentence comported with the defendant’s “legitimate expectations” as to his overall sentence. 


CAL Observes: This opinion, like Tyrell above  (and Peque last month), reflects the Court’s continued and fractious efforts to deal with the application of Catu’s clear command requiring plea vacatur when a defendant pleads guilty unaware of the direct consequences of his plea. One senses more than little exhaustion — if not PTSD – among the judges when issues arise that threaten, even obliquely, the kind of litigation that Catu spawned.  Here, the majority eschews any kind of Catu./Hill analysis in a case where the defendant was clearly not advised correctly regarding the sentence he would receive.  As the dissent (Judges Lippman and Rivera) points out, the majority has seemingly created, with no analytical basis, a different rule for “package” deals.