The People v. Jeffery Bush

State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.

No. 18
The People &c.,
Respondent,
v.
Jeffery Bush,
Appellant.

Ying-Ying Ma, for appellant.
Arieh Schulman, for respondent.

DiFIORE, Chief Judge:

Defendant challenges the voluntariness of his guilty plea, asserting that the court in

its plea colloquy failed to advise him that the 20 days of community service to be imposed

would be a condition of a sentence of a one-year conditional discharge. At the outset of
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the sentencing proceeding, the defense counsel and prosecutor affirmatively acknowledged

to the court that the bargained-for sentence to be imposed was a conditional discharge.

Prior to imposition of that sentence, defendant who had the practical ability to do so, failed

to protest or otherwise seek to withdraw his guilty plea. As a result, defendant’s claim that

the court’s imposition of an alleged new sentence rendered his guilty plea involuntary is

unpreserved for our review.

After initially being charged by felony complaint in May 2017, defendant was

indicted in July 2017, for two counts of criminal possession of a controlled substance in

the third degree, a class B felony offense, and six other related offenses. On September

18, 2017, in open court, the People offered a reduced plea to the class A misdemeanor of

criminal possession of a controlled substance in the seventh degree, the eighth count of the

indictment, with a promised sentence of probation. An off-the-record discussion with the

court and counsel ensued, whereupon the People changed their sentence offer to 20 days

of “community service instead of probation.” Defense counsel sought a recall of the case

to confer with defendant. On the recall, the court informed defendant that defense counsel

had conveyed to the People defendant’s interest in community service and characterized

the People’s plea offer as “reasonable.” Defense counsel accepted the plea offer and stated

that “the plea is conditioned on him doing 20 days of community service, and if he does

not do the community service, he can face up to one year [in] jail.” A mandatory surcharge

and a six-month driver’s license suspension were undisputedly part of the promised

sentence at the time of the plea.

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Defendant was placed under oath and the court conducted a thorough plea

allocution, eliciting defendant’s waiver of his constitutional rights and his admission of his

factual guilt to the reduced crime. Defendant confirmed that he had sufficient time to speak

with his attorney and was satisfied with his representation. When defendant expressed

concern about “the timing of the community service,” the court responded, “I will give you

more than enough reasonable time to do it.” The court also advised defendant that, as a

condition of the plea, he could not be rearrested and “must return on the adjournment date.”

Defense counsel stated that defendant wanted to speak with his employer about scheduling

the community service. In response, the court told defendant that it would not “specify” a

schedule for the performance of the community service. The court again elicited from

defendant that he had adequate time to speak with his counsel and was satisfied with

counsel’s representation.

In pleading guilty to the misdemeanor count, defendant was advised by the court

that the sentence promise would be “20 days of community service.” The court further

stated “[y]ou understand you can’t get re-arrested. You must return on the adjournment

date. And you must complete the community service or else there will be a one year jail

alternative.” Defendant indicated that he understood and the matter was adjourned for

sentencing to November 28, 2017.

At the outset of the sentencing proceeding, defense counsel advised the court that

defendant had completed his 20 days of community service. After noting that

“[c]ommunity service [was] completed,” the court asked the parties, “[a]nd the promise is

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a C.D.?” Defense counsel and the prosecutor each replied “[y]es.” The court confirmed

that, during the relevant time period between plea and sentence, there had been no new

arrests and then elicited from defense counsel that there was no “legal reason why sentence

should not be imposed.” Defense counsel and defendant each declared they were ready for

sentence and defendant declined to say anything further. The court told defendant, “I’m

glad you did the community service, and I’m glad the case is over.” The court then imposed

sentence—“[t]he sentence of the Court is a conditional discharge; $250 in court costs” and

“a six-month license suspension.” That same day, defendant signed the court’s

“conditional discharge” form, which states that defendant was sentenced to “[a] 1 year

period of Conditional Discharge commencing this day.” The $250 surcharge was noted on

the form which also set forth the statutory conditions that defendant may be required to

meet in the discretion of the court to insure that he will lead a law-abiding life “during the

period of Conditional Discharge” (see Penal Law § 65.10 [2]). By statute the term of a

conditional discharge in the case of a misdemeanor is one year (Penal Law § 65.05 [3] [b])

and the one year was completed without incident.

On direct appeal, defendant argued that his guilty plea was involuntary as the court

did not mention the one-year conditional discharge sentence at the time of the plea and, as

a remedy, sought dismissal of the indictment. The Appellate Division affirmed, holding

that defendant’s claim was unpreserved (185 AD3d 1048 [2d Dept 2020]). A Judge of this

Court granted defendant leave to appeal (36 NY3d 928 [2020]) and we now affirm.

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Defendant claims that the court’s plea colloquy was deficient in establishing for the

record the specific terms of the sentence promise, thereby infecting the voluntariness of the

guilty plea. It is axiomatic that the “trial court 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 Ford, 86 NY2d 397, 402-403 [1995]). Further, any sentence

promise made at the time of plea is as a matter of law and strong public policy conditioned

upon its being lawful (see People v Selikoff, 35 NY2d 227, 241 [1974]). When “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” (People v Williams, 27

NY3d 212, 221-222 [2016]; see also People v Conceicao, 26 NY3d 375, 381 [2015]).

On this record, there can be no dispute that defendant neither objected to the

sentence promise as described during either the plea or the sentencing proceeding nor

otherwise protested the voluntary nature of his guilty plea. To be sure, defendant did not

move to withdraw his guilty plea prior to the imposition of sentence as required by CPL

220.60 (3). Instead, defendant belatedly asserts on direct appeal that his plea was

involuntary because the court failed to advise him at the plea proceeding of the sentence to

be imposed. But, he does not seek the vacatur of his guilty plea and the reinstatement of

the indictment, the very relief provided upon a timely CPL 220.60 (3) motion. Rather, he

seeks dismissal of the indictment. To advance this claim on appeal, defendant invokes the

narrow exception to the preservation requirement involving the plea allocution, claiming

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“the particular circumstances of [the] case reveal that [he] had no actual or practical ability

to object to an alleged error in the taking of [the] plea that was clear from the face of the

record” (Conceicao, 26 NY3d at 381; see also People v Louree, 8 NY3d 541, 545-546

[2007]).1

The record demonstrates that, prior to the imposition of sentence, defendant had the

actual and practical ability to object and preserve the claim he now makes—that his guilty

plea was involuntary because of a deficient plea allocution as to the sentence promise, a

direct consequence of the plea. The record before us is plain. At the outset of the

sentencing proceeding, the court confirmed that the agreed-upon sentence was a

conditional discharge, asking both defense counsel and the People if “the promise [wa]s a

CD?” Both indicated that was correct. The court went on to inquire whether there was

“[a]ny legal reason why sentence should not be imposed” and whether defendant was

“[r]eady for sentence,” with defense counsel responding “No” to the first question and

defendant responding “Yes” to the second. The court provided defendant an opportunity

to speak, asking if he wished to say anything, and defendant answered “No.” If the

sentence the court stated it intended to impose differed from what defendant understood

the sentence promise to be at the time of the plea—or if defendant did not understand what

a “CD” was, as our dissenting colleagues speculate—there was an adequate opportunity

1
The additional exception to preservation for an illegal sentence, applicable where it is
apparent from the record that the sentence imposed is not authorized under the law, does
not lie here, since the one-year conditional discharge sentence actually imposed is an
authorized sentence for the misdemeanor conviction (see Penal Law § 60.01 [2] [a] [i]; see
People v Samms, 95 NY2d 52, 56 [2000]).
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prior to the imposition of sentence to say so. Defendant could have objected or moved to

withdraw his plea pursuant to CPL 220.60 (3), as required in order to preserve a claim that

his plea was involuntary (see People v Murray, 15 NY3d 725 [2010]; People v Crowder,

24 NY3d 1134 [2015]; Williams, 27 NY3d at 219-222). Had he done so, the court would

undoubtedly have explored the terms of the parties’ plea agreement. If the sentence of a

conditional discharge had not been discussed with defendant, as defendant now contends,

the remedy would have been to allow the withdrawal of the plea, and the restoration of the

indictment pursuant to CPL 220.60 (3), and not the dismissal of the indictment, which the

dissent would grant. In failing to object at the proper time, defendant is not entitled to a

greater remedy on appeal.2 Stated otherwise, “[b]ecause defendant could have sought relief

from the sentencing court in advance of the sentence’s imposition, [the] rationale for

dispensing with the preservation requirement is not presently applicable” (Murray, 15

NY3d at 727).3

2
We further note that the cases on which the dissent relies in asserting that there should a
dismissal here—People v Tyrell, 22 NY3d 359, 366 (2013), People v Hightower, 18
NY3d 249, 253 (2011) and People v Dreyden, 15 NY3d 100, 104 (2010)—involved
relatively minor charges. This Court has never dismissed a felony indictment on the
ground that further proceedings would serve no useful “penological purposes” (People v
Allen, 39 NY2d 916, 918 [1976]; see People v Thiam, 34 NY3d 1040, 1047 n 5 [2019]
[DiFiore, Ch. J., concurring]; compare Conceicao, 26 NY3d at 385 n * [finding a
penological purpose to remittal of the class A misdemeanor charge of criminal possession
of a controlled substance in the seventh degree to local court for further proceedings]).
3
Defendant’s reliance on People v Turner (24 NY3d 254 [2014]) is misplaced as defense
counsel there did not make an affirmative representation at the outset of the proceeding
that the sentence to be imposed was the same as the sentence promised in the plea bargain
agreement. In addition, the court did not advise the defendant in Turner that the sentence
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In arguing that preservation of the issue was not required in the court of first

instance, both defendant and the dissent disregard defense counsel’s affirmative

acknowledgement in response to the court’s inquiry at the outset of the sentencing

proceeding—wherein both defense counsel and the prosecutor, in defendant’s presence,

affirmatively confirmed that a “CD” was the promised sentence. Defendant further ignores

the fact that he affirmed during the plea allocution that he had sufficient time to speak with

counsel concerning the terms of the plea agreement (see Conceicao, 26 NY3d at 383). It

appears that defense counsel did not move to withdraw the guilty plea or ask for further

clarification because his understanding of the promised sentence was consistent with the

conditional discharge sentence intended to be imposed. Defendant’s theory on appeal that

the promised sentence, as clearly recorded by the parties and the court at the sentence

proceeding, conflicted with his understanding of the consequences of his plea depends on

the notion that defense counsel failed to advise his client of the sentence offer (see Missouri

v Frye, 566 US 134 [2012]) and then made a false representation at the outset of the

sentencing proceeding. Since this theory is not supported by the record, if a credible claim

to that effect exists based on facts dehors the record, defendant’s remedy lies in a

postconviction CPL article 440 motion, wherein defendant can make the requisite sworn

factual allegations to support a claim of a constitutional deprivation of the assistance of

counsel.

to be imposed included the mandatory five years of PRS until “the middle of sentencing,”
depriving her of “sufficient opportunity to move to withdraw her plea” (24 NY3d at 259).
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Indeed, this case demonstrates why we have a preservation rule. Defendant’s lack

of protest in the court of first instance has encouraged speculation as to the understanding

of the parties at the time of the plea in contradiction of the extant record.4 For instance, the

dissent asserts that the original sentence promise, notwithstanding the court’s clear warning

of a potential sentence of one-year incarceration, may have been a stand-alone condition

of a “noncarceral sentence of 20 days of community service” (dissenting op at 1)—a

sentence not authorized by the Penal Law and therefore unlawful. The legislature, not the

Court, defines the permissible sentences that must be imposed on a conviction (see People

v Rodney E., 77 NY2d 672 [1991]; Penal Law § 60.00 [1]). The mechanism devised by

the legislature for imposing a revocable sentence—i.e., probation or a conditional

discharge—through which community service with defendant’s consent may be imposed

as a condition and for which the defendant is subject to incarceration if the condition is not

satisfied, is set forth in Penal Law §§ 60.01 (2), 65.05 and 65.10 (2) (h). The plea allocution

is unequivocal that defendant consented to the condition of community service and faced

the maximum penalty of a one-year jail sentence if he failed to complete the condition.

Although the court’s description of the promised sentence was imprecise, the plea minutes

alone demonstrate that the parties agreed to a revocable sentence as authorized by Penal

4
The preservation requirement promotes the development of an accurate factual record in
order to prevent the advancement of false or unsupported narratives on direct appeal.
The dissent’s suggestion that the prosecution “renege[d]” on the plea promise (see
dissenting op at 8-9) while defense counsel and the court acquiesced in that misconduct
can also serve as a basis for a CPL 440 motion. Of course, there will need to be a factual
premise for such a claim—a premise not to be found on this record.

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Law § 65.05, with conditions, and the imposition of an alternative sentence of one-year

incarceration if the conditions were violated. The parties’ express rejection of the

revocable sentence of probation lends further record support to the conclusion that they

agreed to the conditional discharge sentence, a fact that was later confirmed by the parties

at sentencing.5 Defendant on appeal acknowledges, as he must, that the condition of

community service “cannot be imposed independently of issuing a conditional discharge”

(reply brief for appellant at 10) and the record does not support any conclusion to the

contrary.

In response to the dissent’s claim of concessions made by the parties on appeal, our

precedent is clear—we are not prevented from performing our judicial function by

purported confessions of error of either the defendant or the district attorney by way of an

interjection of alleged facts dehors the record (see Selikoff, 35 NY2d at 243; People v

Berrios, 28 NY2d 361, 366-367 [1971]). Finally, to the extent our dissenting colleagues

rely on statements made by counsel at oral argument offering a novel view of the case

without regard to the factual record, the issue before us is whether defendant had an

opportunity to preserve the argument he now asserts. He did. And, therefore, his failure

5
Indeed, the original court file contains a form entitled “COURT ORDER FOR
INVESTIGATION AND REPORT” directed to the New York City Department of
Probation, which detailed the “SENTENCE AGREEMENT the Court made with the
defendant: 20 days CS → CD + 6 mo LS
unsuccessful → 1 yr NYCDOCS.”

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to timely move to withdraw his plea renders his claim unpreserved, precluding our further

review.6

In the end, the record as a whole demonstrates that the plea bargain agreement

included a revocable sentence with conditions, including community service, and, when

the court, whose role is to oversee and supervise the plea bargain process, confirmed that

understanding with the parties at the outset of the sentencing proceeding, their affirmation

that a conditional discharge was the agreed-upon disposition was a “joint representation

that no other undisclosed term of agreement, different from the court’s express

understanding, existed between them” (35 NY2d at 243). Since defendant had the actual

and practical ability to raise his current argument at the outset of the sentencing proceeding

and prior to the imposition of sentence, his failure to do so precludes our review.

Accordingly, the order of the Appellate Division should be affirmed.

6
In oral argument, the People deviated from their brief to this Court and asserted that
defendant’s promised sentence was an unconditional discharge, which, by definition
(Penal Law § 65.20), includes no conditions, let alone 20 days of community service.
The appellant at oral argument rejected that belated claim. There are no references in the
record to any sentence promise of an unconditional discharge and the People’s contrary
assertion is belied by both the sentencing minutes and the law as to authorized sentences.
Nor is there any reference that a one-year jail term was the sentence to be imposed if
community service was not completed before the sentencing date. The plea minutes
reflect that the court was quite specific that it was not placing any timetable on the
completion of the community service, consistent with a sentence promise of a one-year
conditional discharge. In any event, the People made no errant statements or concessions
with respect to the preservation issue, which turns on the undisputed content of the
sentencing transcript and is dispositive in this case.
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RIVERA, J. (dissenting):

Defendant Jeffrey Bush pleaded guilty to a reduced charge in exchange for a

noncarceral sentence of 20 days of community service, along with a mandatory surcharge

and temporary suspension of his driver’s license. When defendant appeared after

completing his community service and without further criminal incident, the sentencing

should have been in accord with the prosecutor and defendant’s agreement. Instead, the

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court imposed additional year-long conditions that were not agreed to and never mentioned

during the plea colloquy or prior to sentencing. As a consequence, defendant’s plea is

invalid (see People v Turner, 24 NY3d 254, 258 [2014] [“To meet due process

requirements, a defendant ‘must be aware of the postrelease supervision component of that

sentence in order to knowingly, voluntarily and intelligently choose among alternative

courses of action.’ Without such procedure, vacatur of the plea is required”], quoting

People v Catu, 4 NY3d 242, 245 (2005)]).

No one disputes that the conditional sentence actually imposed is more severe than

the conditions described to defendant in open court prior to his plea. Nor did defendant

commit any misconduct or violations of conditions imposed while awaiting sentencing that

might have justified the court’s deviation from the plea agreement. The prosecutor

concedes that the sentence was imposed in error, and the record bears this out because the

only conditions mentioned as part of the plea were those expressly stated on the record

during the colloquy. The only dispute is whether defendant preserved his meritorious

challenge to his conviction on the ground that he did not knowingly, intelligently, and

voluntarily plead guilty in exchange for the sentence imposed. Given that the court gave

no warning that it would impose a sentence harsher than defendant agreed to in exchange

for his guilty plea, defendant could not have objected prior to the actual sentencing that he

was denied the benefit of his plea bargain. Therefore, the conviction must be reversed, and

because defendant completed the erroneously imposed sentence years ago, no penological

purpose is served by remitting for further proceedings, and the indictment should be

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dismissed (People v Hightower, 18 NY3d 249, 253 [2011]; People v Dreyden, 15 NY3d

100, 104 [2010]).

I.

Defendant was driving one night when a police officer pulled him over for changing

lanes without signaling. As a result of the stop and subsequent search of defendant, he was

charged with traffic law offenses and drug possession. Defendant agreed to the prosecutor’s

offer to plead guilty to the Class A misdemeanor of criminal possession of a controlled

substance in exchange for a sentence of community service and no jail time.

The court, prosecutor, and defense counsel described the details of the agreement

and confirmed defendant’s understanding of the terms during the plea colloquy:

“[COURT]: What is the offer? . . . People are offering a
misdemeanor, correct? We need the People’s consent to reduce
this from a felony.
[PROSECUTOR]: The offer is community service instead of
probation. I will do 20 days.
...
[COURT]: Drugs were allegedly found on his waistband.
Probation was not offering an unreasonable offer. Your lawyer
spoke to the district attorney who said you were interested in
community service which is more than reasonable but it’s your
opinion that counts. [The prosecutor] is offering you today a
misdemeanor and 20 days of community service.
[PROSECUTOR]: People originally wanted 30 days in lieu of
probation. Defense asked me for 15. I offered the 20.
...
[DEFENSE COUNSEL]: He will now plead guilty to []
Criminal Possession of a Controlled Substance in the Seventh
Degree, a Class A misdemeanor, and the plea is conditioned on
him doing 20 days of community service, and if he does not do
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the community service, he can face up to one year jail. If he
does the community service, he owes $200 in mandatory
surcharge.
[COURT]: It’s $250.
[DEFENSE COUNSEL]: $250. I’m sorry. And there will be a
six-month license suspension.
[COURT]: It’s your decision. I respect that. It’s a reasonable
offer. Did you have enough time to speak to your lawyer?
[DEFENDANT]: Yes.
[COURT]: Do you need any more time?
[DEFENDANT]: No.”
In response to defendant’s concern, the court stated defendant would have time to complete

the community service, and repeated several times that in order to secure the noncarceral

sentence he had to complete the community service, not get rearrested, and return on the

scheduled court date.

“[DEFENDANT]: I understand. It’s just the timing of
community service.
[COURT]: I will give you more than enough reasonable time
to do it. Also, you can’t get re-arrested, and you must return on
the adjournment date. I will give you time to do it.
...
[COURT]: You are pleading guilty to a misdemeanor which is
a crime, and the promise is 20 days of community service and
we will work around your schedule?
Is that your understanding and do you agree to that?
[DEFENDANT]: Yes.
...
[COURT]: You understand you can’t get re-arrested. You
must return on the adjournment date. And you must complete
the community service or else there will be a one year jail
alternative. Do you understand?

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[DEFENDANT]: Yes.”
Defendant satisfied these promises. When he appeared for sentencing as scheduled

approximately two months later, the court acknowledged that defendant had completed his

community service and that there were no new arrests and proceeded with sentencing:

“[COURT]: Community service completed. And the promise
is a C.D.?
[DEFENSE COUNSEL]: Yes.
[PROSECUTOR]: Yes.
[COURT]: No new arrests?
[PROSECUTOR]: Not that I’m aware of, no.
[COURT]: Any legal reason why sentence should not be
imposed?
[DEFENSE COUNSEL]: No, Judge.
[COURT]: Ready for sentence?
[DEFENDANT]: Yes.
[COURT]: Ready, [defense counsel]?
[DEFENSE COUNSEL]: Yes, Judge.
[COURT]: Does your client wish to say anything?
[DEFENDANT]: No.
[COURT]: Good. I’m glad you did the community service, and
I’m glad the case is over.
[Prosecutor], do you wish to say anything?
[PROSECUTOR]: No.
[COURT]: Thank you, both sides. The sentence of the Court is
a conditional discharge; $250 in court costs.”
The Conditional Discharge form dated the same day provides that defendant was

subject to a “1 year period of Conditional Discharge commencing on this day” and that,

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“during the period of Conditional Discharge the defendant
must lead a law-abiding life and must comply with the
following conditions: 1. Avoid injurious or vicious habits, do
not visit unlawful or disreputable places; and do not consort
with disreputable people. 2. Work faithfully at a suitable
employment or pursue a course of study or vocational training
that can lead to suitable employment. 3. Support dependents
and meet other family responsibilities.”

The form also warns that,

“[y]our failure to conform to any of the conditions, or your
commission of an additional offense other than a traffic
infraction, is a violation of the Conditional Discharge. You
have a right to be present at any hearing held to determine if
you have violated your Conditional Discharge. If you
intentionally fail to appear at a Violation Of Conditional
Discharge Hearing, a hearing may be held in your absence,
your Conditional Discharge may be revoked, and a warrant
may be issued for your arrest.”

Defendant complied and the terms of the conditional discharge expired during the

pendency of his appeal to the Appellate Division. That Court affirmed the conviction on

the ground that defendant failed to preserve his claim that the plea was not knowing,

intelligent, and voluntary because the lower court failed to inform him in advance that he

would be sentenced to a conditional discharge (People v Bush, 185 AD3d 1048 [2020]).

On appeal to this Court, defendant argues, as he did below, that the plea is invalid

because he was sentenced to a one-year conditional discharge never mentioned during the

plea colloquy; that, prior to sentencing, he upheld his side of the bargain and served the 20

days of community service required under his agreement with the prosecutor, as described

by the court during the colloquy, and that he did not have an opportunity to challenge the

sentence of conditional discharge before it was imposed. Defendant is correct that the plea

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is invalid based on what the parties agree is the discordance between the plea agreement

and the sentence imposed.

II.

A.

In order to be valid, a plea must be knowing, intelligent, and voluntary (see People

v Lopez, 6 NY3d 248, 256 [2006]). To that end, the court must “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], citing People v Ford, 86 NY2d

397, 402-403 [1995]; see also Turner, 24 NY3d at 258, quoting Catu, 4 NY3d at 244-245).

The court must advise the defendant of direct consequences of the plea, which includes the

sentence (see People v Harnett, 16 NY3d 200, 205 [2011] [“The direct consequences of a

plea—those whose omission from a plea colloquy makes the plea per se invalid—are

essentially the core components of a defendant’s sentence: a term of probation or

imprisonment, a term of post-release supervision, a fine”]). “Undoubtedly, in the vast

majority of plea bargains the overwhelming consideration for the defendant is whether

[they] will be imprisoned and for how long” (People v Gravino, 14 NY3d 546, 559 [2010]).

“[T]he plea bargaining process affords the accused the opportunity to obtain a

conviction on reduced charges and more lenient punishment in a truncated process that

‘hopefully start[s] the offender on the road to possible rehabilitation’” (People v Thomas,

34 NY3d 545, 557 [2019], quoting People v Selikoff, 35 NY2d 227, 233 [1974]). Plea

bargaining “provides a means where, by mutual concessions, the parties may obtain a
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prompt resolution of criminal proceedings with all the benefits that enure from final

disposition” (People v Seaberg, 74 NY2d 1, 7 [1989]).

“It is also well settled that plea agreements are consistent with the requirements of

voluntariness and intelligence—because each side may obtain advantages when a guilty

plea is exchanged for sentencing concessions, the agreement is no less voluntary than any

other bargained-for exchange” (Mabry v Johnson, 467 US 504, 508 [1984]). This only

holds true if both sides are clear on the specifics of the agreement and comply with their

end of the bargain. “Although the analogy may not hold in all respects, plea bargains are

essentially contracts” (Puckett v United States, 556 US 129, 137 [2009]). Thus, it is a matter

of “essential fairness . . . that a promise made by a State official authorized to do so and

acted upon by a defendant in a criminal matter to his detriment is not lightly to be

disregarded” (People v McConnell, 49 NY2d 340, 349 [1980]). In McConnell, our Court

acknowledged the “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” (id.). Put another way, the legitimacy of a plea

bargain depends on the assurance that the government will keep its promise, especially

once a defendant has upheld their side of the bargain. Otherwise, there would be no

incentive on the part of a defendant to negotiate and give up their rights to trial in exchange

for a particular sentence (see Michael Cicchini, Broken Government Promises: A Contract-

Based Approach to Enforcing Plea Bargains, 38 NM L Rev 159, 159 [2008] [“(T)he

government compromises the integrity of the system when it makes promises as part of a

plea bargain and then reneges on those promises, often after obtaining from the defendant

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the very benefit for which it bargained. This negative impact is magnified when the

government reneges without good cause due to its own negligence or even bad faith. When

courts refuse to hold the government to its end of the bargain, the courts encourage further

similar behavior”]; Peter Westen & David Westin, A Constitutional Law of Remedies for

Broken Plea Bargains, 66 Cal L Rev 471, 511-512 [1978] [“(T)he requirement that a guilty

plea be made intelligently forbids the prosecution from breaching promises made to the

defendant with respect to the consequences of his plea. This is because by breaching its

promises, the state fails to do what is reasonably within its power to assure the accuracy of

its representations to the defendant with respect to the alternatives open to (them), and by

this failure abridges (their) constitutionally protected interest in choosing what is in (their)

‘best interests’”]).

Apart from the equities, there is the practical significance of plea bargains to

individuals and our legal system. As the United States Supreme Court explained in

Missouri v Frye, “[t]o a large extent . . . horse trading [between prosecutor and defense

counsel] determines who goes to jail and for how long. That is what plea bargaining is. It

is not some adjunct to the criminal justice system; it is the criminal justice system” (566

US 134, 144 [2012] [citations omitted]). Therefore, as I have previously stated, “[t]he

constitutional duty to ensure that a defendant has a full understanding of what [their] plea

connotes is of particular importance, given the central role of the plea bargaining process

in criminal courts” (People v Monk, 21 NY3d 27, 34 [2013, Rivera, J., dissenting]). A plea

cannot be constitutionally valid if the defendant pleads guilty in exchange for a particular

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sentence and a harsher sentence is imposed with no grounds to justify the deviation from

the mutually agreed upon terms.

B.

A defendant does not have to preserve a challenge to the voluntariness of a plea

where they “had no actual or practical ability to object to an alleged error to the taking of

the plea that was clear from the face of the record” (People v Conceicao, 36 NY3d 375,

381 [2015]). It is axiomatic that, absent an error that is clear from the record, a defendant

has no basis to object because they are not aware of a defect (see Louree, 8 NY3d at 545-

546). In other words, “a defendant can hardly be expected to move to withdraw [their] plea

on a ground of which [they] ha[ve] no knowledge” (id. at 546).

Mere reference to a missing or altered term of the sentence, however, may not be

sufficient to alert a defendant to a constitutional violation that requires preservation. That

determination turns on the record of events as they unfold. Thus, in Turner, where the court

first mentioned the length of the postrelease supervision (PRS) at sentencing and where the

defendant acknowledged to the court that they were aware of the term prior to imposition

of the sentence, we concluded that the claim did not need to be preserved because “the

defendant did not have sufficient knowledge of the terms of the plea at the plea allocution

and, when later advised, did not have sufficient opportunity to move to withdraw [the]

plea” (24 NY3d at 259). We further noted that “the prosecutor, not the court, led the

sentencing colloquy and may have misled defendant by telling her that PRS ‘was part of

her plea’” (id.).

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III.

The record confirms defendant’s version of the plea agreement as agreed upon by

the parties and the court at the plea allocution: the prosecutor offered defendant 20 hours

of community service in exchange for his guilty plea on the Class A misdemeanor, with

the caveat that noncompliance put defendant at risk of up to one year in jail. Defendant

accepted that offer. He was further informed that the plea was subject to a $250 mandatory

surcharge and a six-month driver’s license suspension. The court also informed defendant

that to secure the promised sentence, defendant could not get rearrested and must return on

the adjournment date.

This was the full extent of the parties’ agreement. If it were otherwise, the parties

and the court would have made that plain on the record, but there is no mention of any

other condition or that defendant’s confirmed sentence was intended to be one year. Indeed,

that period was raised as a carceral sentence if defendant failed to complete the community

service, not as a firm period of limitation on his liberty. Notably, the court’s only correction

was to defense counsel’s mistaken statement that the surcharge was $200 rather than $250.

At sentencing, the court acknowledged that defendant completed the required

community service and had not been rearrested. The court did not mention that defendant

was nevertheless going to be sentenced to additional conditions lasting a year. Defendant’s

case is even more compelling than the Turner defendant’s because, while that defendant at

least had been advised that PRS was a sentence component but not informed of the length

until sentencing, defendant here was never told that the conditions would last for a year.

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And he could not have believed he was subject to anything other than a short-term

condition, otherwise he would not have voiced his concern that he needed enough time to

complete the 20 days of community service required to avoid the one year of jail time, of

which he was made aware multiple times during the plea colloquy. Simply stated, in

accordance with our case law, a plea cannot be knowing, voluntary, and intelligent when a

defendant is informed, as was the case here, that the plea agreement is limited to a finite

number of requirements and conditions, but the court then imposes a more severe sentence

without defendant’s full knowledge of the same and without an opportunity for defendant

to withdraw the plea before sentencing (see id.; Louree, 8 NY3d at 545-546).

Contrary to the majority’s assertion, there is no preservation bar to defendant’s

challenge (see majority op at 2). The majority concludes that although defendant failed to

object, he had an opportunity to preserve his claim because he could have spoken up

when—moments before imposing sentence—the court confirmed that the sentence was a

“CD” (see id. at 1-2). Even a cursory read of the record establishes that the court’s reference

to the shorthand “CD” for a “conditional discharge” was insufficient to place defendant on

notice that the conditional aspect of the sentence was anything other than what he had

agreed to at the plea—20 days of community service. It is not speculation to recognize that

nothing in that two-letter acronym would alert defendant that something was amiss and

that he was going to be sentenced to one year of conditions (see id. at 6).

The fact that defense counsel also used the CD shorthand does not affect the

analysis. In Turner, the defendant’s counsel failed to object to the addition of PRS even

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though the defendant acknowledged having spoken with counsel (24 NY3d at 259). Same

here where defendant’s counsel failed to object to the conditional discharge (cf. majority

op at 6). And in People v McAlpin, the Court clarified that a defendant who is told before

the imposition of the sentence that they would be subject to PRS did not have sufficient

time to object to the sentence (see 17 NY3d 936, 938 [2011]). The Court came to this

conclusion despite the fact that defense counsel “agreed with the sentencing court’s

statement on the record that the defendant had been informed of postrelease supervision at

the plea proceeding” (id.). Same here where counsel confirmed the sentence was a “CD”

(cf. majority op at 7 and n 3).

The majority also attempts to distinguish this case from Turner on the basis that

counsel did not speak at the outset of the proceeding and the court did not advise the

defendant about the PRS “until ‘the middle of sentencing’” (majority op at 7-8 n 3, quoting

Turner, 24 NY3d at 259). However, as the sentencing transcript in Turner makes clear, the

discussion of the PRS component of the sentence in Turner was raised by the prosecutor

just prior to the court’s imposition of the sentence. We can just as well say in this appeal,

as in Turner, that the issue was raised in the course of sentencing—whether in the

beginning, middle, or end—is of no material difference, since the common thread in the

analysis is that the court was in the process of sentencing defendant. Further, the

prosecutor’s affirmation of a CD here is potentially as misleading as the prosecutor’s

statement in Turner that PRS “‘was part of her plea’” (24 NY3d at 259).

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This all leads to one conclusion, that defendant did not have an opportunity to

challenge the sentence when the court failed to adequately describe it except in shorthand,

moments before imposing the sentence. Moreover, defendant could not have understood

that he was subject to conditions that extended beyond the hearing—a sentence more severe

than he pleaded to—when the court suggested the opposite by prefacing the sentence by

saying, “I’m glad you did the community service, and I’m glad the case is over.”

Both parties have represented to this Court that the sentence was imposed in error

because defendant agreed to 20 days of community service in exchange for pleading guilty

to a lesser count, completed that condition prior to sentencing, but the court imposed a

more severe one-year conditional sentence. Put another way, the parties confirm that the

plea that was voluntarily, knowingly, and intelligently entered at the colloquy was in

exchange for a different sentence from that which was actually imposed.1 The majority

fails to explain why defendant’s conviction should stand when the prosecutor and

defendant agree that the terms of the bargained-for plea differ from the sentence. Instead,

the majority contends that the parties disagree as to the terms of the plea (see majority op

at 9-10). That is a convenient but inaccurate characterization of the record and the

1
The majority misrepresents defendant’s claim as turning on an defense counsel’s alleged
ineffectiveness for failure to properly explain the plea terms (see majority op at 8). But the
majority is correct about one thing, the benefits of an accurate factual record “to prevent
the advancement of false or unsupported narratives on direct appeal” (id. at 9 n 4).
However, the only unsupported narrative spun here is the majority’s view that the plea
agreement was for a one year term of additional conditions beyond the 20 days of
community service—even though the record and the parties’ acknowledged understanding
of the prosecutor’s offer are to the contrary.
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representations to this Court.2 The District Attorney’s position on appeal has always been

that defendant failed to preserve his challenge, thus barring consideration of the merits of

his claim. That line of argumentation does not turn on whether the sentence deviates from

the parties’ plea agreement. From that perspective, it is not surprising that the District

Attorney acknowledges what he views as an irrelevant fact—the parties’ agreement was

for the 20 days of community service offered by the prosecutor at the plea colloquy, full

stop.

The majority engages in speculation about prosecutorial choices and the

negotiations with defendant when it asserts, first, that the parties intended a plea agreement

for a revocable sentence with conditions that included community service and, second, that

the parties affirmation to the “CD” was in reality “a ‘joint representation that no other

undisclosed term of agreement, different from the court’s express understanding, existed

between them’” (id. at 11, quoting Selikoff, 35 NY2d at 243). As to the majority’s

characterization of the sentence, that is not how the prosecutor described the offer and the

court did not say that the plea was for a revocable sentence with conditions. We are neither

the parties to the agreement nor the sentencing court, and we are thus left with only the

record before us. And if the majority is correct as to how the agreement should be viewed,

2
The record speaks for itself. The prosecutor at the plea colloquy stated expressly that his
offer was 20 days of community service, and defendant accepted that offer. Then, at oral
argument before this Court, the Assistant District Attorney opened by acknowleding that
this was the parties’ agreement (see tr at 12, available at
https://www.nycourts.gov/ctapps/arguments/2022/Feb22/Transcripts/021022-18-
Oral%20Argument-Transcript.pdf). We must accept the arguments made by the parties,
and not what any member of this Court might have said or done if they were litigating the
case.
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then the court was under a constitutional duty to ensure that defendant understood the

nuances of such a sentence at the plea allocution (see Catu, 4 NY3d at 244-245). But the

court did not make such an effort, and that error—if it was error at the plea—cannot be

avoided when the sentencing court failed to explain that the passing reference to the “CD”

was, as the majority now contends, essentially a revocable sentence based on defendant’s

completion of the community service condition. In any case, the majority’s proposed

understanding of the sentence is not the actual sentence imposed.

The majority’s second assumption is belied by the parties’ understanding of the

bargained-for plea as described on the record at the plea colloquy and before this Court. If

the majority were correct on this point, then defendant cannot be expected to challenge

what those with legal training failed to clearly express, instead relying solely on shorthand

insider references that could have been misleading or misinterpreted. Our system relies on

what the parties and the court understand and state on the record, not on the majority’s bare

speculation. Try as it may, the majority cannot change what occurred here to support its

affirmance of the conviction merely by characterizing the court’s description of the

sentence as “imprecise” (see majority op at 9). There is no uncertainty or vagueness in the

court’s statements to defendant nor in the prosecutor’s express offer of community service.

The imprecision is in the majority’s analysis.

IV.

Defendant completed his community service as required by the plea agreement in

advance of the sentencing hearing, and yet when he returned to court he was additionally

subjected to a one-year conditional discharge. The terms of the sentence imposed in error

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 - 17 - No. 18

have expired now. Given the unique circumstances of this case—specifically the parties’

representation that the sentence was not the one agreed to, the unavailability of specific

performance by the People as a remedy for this error, and defendant’s completion of the

wrongfully imposed and wrongful sentence—reversal is required.

Moreover, no penological purpose is served by remittal for further proceedings. To

summarize, first, defendant lived up to his end of the bargain before the sentencing hearing

by completing his community service and abiding by all the requirements expressly stated

at the plea colloquy to avoid a year in prison. Remittal risks additional punishment even

though he complied with the terms of the agreement. Second, without any conduct by

defendant justifying a deviation from the promised sentence, defendant served a harsher

sentence than agreed to by the parties. Third, as the majority states, defendant completed

that sentence “without incident,” meaning he abided by the additional conditions for a full

year (see majority op at 4). Fourth, the prosecutor negotiated defendant’s plea to a

misdemeanor in satisfaction of the entire indictment. That decision was presumably

informed, in part, by the prosecutor’s assessment of the strength of their case and the facts

underlying defendant’s arrest. Thus, the representative of the People of the State of New

York concluded that defendant’s community service was an appropriate penalty given the

particulars of his case.

Reversal and dismissal of the indictment protect the integrity of the plea bargaining

process, as this holds defendant to his end of the bargain but provides him with meaningful

relief for serving a more severe sentence than intended by both defendant and the

prosecutor. This outcome is not only compelled by our law under the facts of this case, but

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 - 18 - No. 18

it is the only just resolution now that the sentence has been served (see e.g. People v Tyrell,

22 NY3d 359, 366 [2013] [plea vacated after sentence completed]; Hightower, 18 NY3d

at 253 [accusatory instrument dismissed where defendant served the sentence]; Dreyden,

15 NY3d at 104 [accusatory instrument dismissed because defendant was sentenced to time

served]).3

The majority’s affirmance is a drastic departure from our prior precedent and shows

little regard for the bargain struck by the parties. I dissent.

Order affirmed. Opinion by Chief Judge DiFiore. Judges Garcia, Singas and Cannataro
concur. Judge Rivera dissents in an opinion, in which Judges Wilson and Troutman
concur.

Decided March 22, 2022

3
Contrary to the majority’s assertion, the counts originally filed against a defendant are
not dispositive of whether the indictment should be dismissed for lack of a penological
purpose (see majority op at 7 n 2). Courts, including this Court, have never so held. In fact,
this is an undeveloped area of the law; decisions are at times made without reference to
fixed criteria. As the author of the majority opinion here has previously acknowledged,
“we have on occasion dismissed an accusatory instrument ‘without supporting rationale
for the unusual result’” (People v Thiam, 34 NY3d 1040, 1049 n 5 [2019, DiFiore, Ch. J.,
concurring], quoting People v Allen, NY2d 916, 918 [1976]). Instead, the decision to
dismiss turns on the circumstances of the case. The fact that defendant was initially charged
with a felony does not, as the majority would have it, limit defendant’s remedies on this
appeal. And, as I have discussed, there is plenty of rationale for dismissal here.
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