In People v Morbillo(2008 NY Slip Op 09102, 56 AD3d 694 [2d Dept 11/18/08]) the Second Department considered the consequence of the failure of a superior court, during the plea proceedings, to advise the defendant that his sentence would run consecutively to the undischarged sentence on his prior conviction.
The Court held that since, pursuant to Penal Law § 70.25 [2-a], the consecutive sentence was a direct consequence of the plea, the court's failure to advise the defendant at the time of the plea that his sentence would run consecutively to the undischarged sentence on his prior conviction prevented his plea from being knowing, voluntary, and intelligent (see People v Hill,9 NY3d 189, 191 , cert denied 553 US —, 128 S Ct 2430 ; People v Loree, 8 NY3d 541, 545 ; People v Catu, 4 NY3d 242, 245 ).
Consequently, the Court reversed the judgment, vacated the plea, and remitted the matter to the County Court "for a new plea proceeding in which it shall advise the defendant that, should he elect to plead guilty, his sentence would run consecutively to the undischarged sentence on his prior conviction."
In Morbillo this issue apparently was preserved by the defendant's objection to the imposition of the consecutive sentence. Significantly, the Court of Appeals in People v Loree (8 NY3d at 545-546). has expressly held that errors of this type need not be preserved for review.
Specifically, in Loree, the Court concluded that when a defendant is not informed of postrelease supervision until sentencing, a postallocution motion is not required because "a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge" (id. at 546). Hence, the Court this type of error to be similar to the rare cases in which "a defendant's factual recitation negates an essential element of the crime pleaded to" – evincing that the plea is not intelligently entered – "and the trial court fails in
its duty to make further inquiry and instead accepts the plea" (id. at 545; see People v Lopez, 71 NY2d 662, 666 ). In so holding, the Court expressly relied upon "the actual or practical unavailability" of the postallocution procedural devices when a defendant is not made aware of additional term of the sentence, not mentioned at the plea, until sentencing, i.e., a motion to withdraw a plea may be made only "before the imposition of sentence" (CPL 220.60 ) and CPL article 440 motions are not available because any omission would be clear from the face of the record (see CPL 440.10 ). People v Louree, 8 NY3d at 546.
Considering the frequency in which courts neglect to inform defendants of the mandatory nature of a sentence and the absence of a preservation requirement, this is an issue which appellate counsel should put on their checklist. Indeed, for appellate attorneys, who since People v Dokes (79 NY2d 656 ), have been searching for another recurring issue in which reversal can be obtained despite the lack of preservation by trial court counsel, Morbillo issue might be the most significant case in quite a while. A note of caution is due. Please be very careful before making any argument that would result in a reversal of a conviction resulting from a guilty plea, since the defendant then faces the original charges and the potential for a far worse outcome.
(Thanks to Drew DuBrin for bringing Morbillo to my attention).