People v Backus, decided today, is one of those short Court of Appeals decisions which seem innocuous, but cryptic, until you read the decision below. The Court of Appeals held simply that the appellate division should be reversed and that the People were not permitted to move to vacate the plea, noting inter alia that the prosecution did not appeal.
On review of the decision below, however, it looks important. Three Fourth Department judges had held that the sentences imposed – on a plea of guilty – could not run consecutively, and therefore the matter would be remanded and the prosecution could move to vacate the plea as they didn’t get their bargained-for sentence. The two Appellate Division dissenters (one of whom granted leave), agreed that the sentences could not run consecutively, but noted that the court was permitted to simply impose a sentence of one year, and that this course of action would be better. It specifically noted that the appellate court may “in its discretion” resentence instead of remand.
The Court of Appeals decision, read in light of the AD4th facts and decision, seems to me to hold that if the prosecution bargains for an illegally long sentence, that it does not have the right to withdraw permission for the plea – and have it vacated – when that illegality is cleared up. It may have been factually important that the defendant had served the entire one year which could have been legally imposed, but if so, that was not made clear in the CoA opinion.
This case seems significant to me, since in the past any illegal local court sentence was nonetheless enforceable so long as there was a state prison cell waiting for a defendant with the temerity to challenge that sentence. The Court of Appeals cited two cases. Matter of Kisloff v Covington, which held that where the defendant entered a plea to an attempted “E” with a promise of 1.5-3 (because everyone thought the attempt to commit an E was an E, not a misdemeanor) that the prosecution could not seek to vacate the plea. Matter of Campbell v Pearce also held that once a defendant has started his sentence the court cannot vacate the plea because jeopardy had attached.
Properly understood, I think this Court of Appeals decision that “County Court lacks the power to vacate the conviction or plea” removes the threat of state time from people who successfully challenge illegally severe local court sentences, and prevents vacating a plea induced by an illegally severe sentence, if that sentence has been commenced.
