People v. Anthony S. Pignataro


AD4 order dated March 16, 2012, affirming judgment of resentence. Decision below: 93 A.D.3d 1250, 939 N.Y.S.2d 923. Read, J., granted leave October 24, 2012.

ISSUE PRESENTED: Where defendant underwent PRS 601-d resentence to a term without PRS, whether defendant’s motion to withdraw his plea (People v. Catu) could be denied because the People, pursuant to PL §70.85, agreed to a resentence without PRS. (Assigned counsel: Charles J. Greenberg, 3840 East Robinson Road, Amherst, NY 14228.)

Issue before the Court: Is P.L.§ 70.85, which permits a court on a 601-d Sparber resentencing to reimpose the original determinate sentence without any term of PRS, unconstitutional because it denies a defenadnt the right to vacate his guilty plea? 


Held: No, writes Judge Rivera, making clear that the reason lies not in a theory that the defendant’s sentencing expectations were fulfilled, but because P.L. 70.85 is a legislative remedy for the plea's defectiveness.  Section 70.85 ensures that a defendant pleaded guilty with the requisite awareness of the direct consequences of his plea. Section 70.85 renders the plea due-process compliant. 


CAL Observes: The distinction Judge Rivera draws is not entirely clear to us.  However, we take it that, in any case, defendant Pignataro was never at liberty during the course of this litigation and never actually served any PRS.  If he had, it would be impossible to see how section 70.85 could remedy the original defect, as Mr. Pignataro would again have pleaded guilty unaware of the plea’s actual and direct consequences.