People v. Svenson

206 A.D.3d 1294

170 N.Y.S.3d 332

The PEOPLE of the State of New York, Respondent,

v.Derick S. SVENSON, Appellant.

112249

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 28, 2022

Decided and Entered: June 16, 2022

Robert C. Kilmer, Binghamton, for appellant.

Michael A. Korchak, District Attorney (Benjamin E. Holwitt of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Fisher, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered November 6, 2019, convicting defendant upon his plea of guilty of the crime of criminal possession of a forged instrument in the second degree.

In satisfaction of a five-count indictment, defendant pleaded guilty to criminal possession of a forged instrument in the second degree and waived his right to appeal. Defendant was then released on his own recognizance. A bench warrant for defendant's arrest was subsequently issued by County Court after defendant did not appear at a scheduled presentence investigation appointment, could not be reached at the telephone number provided and failed to appear at sentencing. Upon his return to court, defendant moved to withdraw his plea on the ground that his plea was involuntary as his anticipated release upon pleading guilty influenced his decision to enter his plea and he did not understand that he was waiving his right to a jury trial. County Court denied defendant's motion and sentenced him, as a second felony offender, to a prison term of 2½ to 5 years, to be served pursuant to CPL 410.91 in the Willard drug treatment program. Defendant appeals.

Defendant argues that his plea was not knowing or voluntary because the benefits of a cooperation agreement that he purportedly entered into with the People "disappeared without explanation at the time of ... defendant's guilty plea." He additionally contends that County Court should have granted his motion to withdraw his guilty plea because his plea was the result of fraud or mistake in the inducement. He asserts that he "relied on the advantages" of the purported cooperation agreement when he entered his guilty plea and that County Court should have inquired as to the status of the cooperation agreement or his compliance with its terms at the time that it accepted his guilty plea.

Although there is some dispute as to the existence of a cooperation agreement between defendant and the People, the People's January 2019 plea offer letter stated that, if defendant cooperated sufficiently, the People would consider allowing defendant to withdraw his guilty plea and enter a new plea to attempted criminal possession of a...