SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

435 

KA 13-02108 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, VALENTINO, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MARLAND D. BROOKS, DEFENDANT-APPELLANT. 

 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),

FOR RESPONDENT. 

 

Appeal from a judgment of the Steuben County Court (Marianne

Furfure, A.J.), rendered October 15, 2012. The judgment convicted

defendant, upon his plea of guilty, of attempted assault in the second

degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law, the plea is vacated, and the matter

is remitted to Steuben County Court for further proceedings on the

indictment. 

Memorandum: On appeal from a judgment convicting him upon his

plea of guilty of attempted assault in the second degree (Penal Law

§§ 110.00, 120.05 [3]), defendant contends that the Trial Judge should

have recused herself. We conclude that defendant waived that

contention, inasmuch as the Judge explained her potential conflict of

interest and defendant consented to the Judge’s continued involvement

after discussing the potential conflict with defense counsel (see

People v Hines [Stephen], 260 AD2d 646, 647, lv denied 93 NY2d 1019). 

In any event, we conclude on this record that the Judge did not abuse

her discretion in failing to recuse herself (see generally People v

Moreno, 70 NY2d 403, 405-406; Hines, 260 AD2d at 647).

We agree with defendant, however, that his plea should be vacated

on the ground that it was not voluntarily, knowingly or intelligently

entered based on the mistaken understanding of the legally required

sentence shared by County Court and counsel. Although defendant

failed to preserve his contention for our review (see People v

Darling, 125 AD3d 1279, 1279), we conclude that the narrow exception

to the preservation requirement applies (see generally People v Lopez,

71 NY2d 662, 666). Here, it is clear from the face of the record that

the prosecutor incorrectly stated that the sentence on the instant

conviction must run consecutively to the sentence imposed on an
-2- 435 

KA 13-02108 

unrelated conviction, when in fact that was not the case because the

instant offense occurred prior to the unrelated conviction (see

generally Penal Law § 70.25). It is equally clear that this error was

not corrected by defense counsel or the trial court. Thus,

preservation was not required “[i]nasmuch as defendant—due to the

inaccurate advice of his counsel and the trial court—did not know

during the plea . . . proceedings” that consecutive sentences were not

required by law (People v Williams, 123 AD3d 1376, 1377). 

“ ‘[D]efendant [could] hardly be expected to move to withdraw his plea

on a ground of which he ha[d] no knowledge’ ” (People v Peque, 22 NY3d

168, 182, quoting People v Louree, 8 NY3d 541, 546). Even assuming,

arguendo, that the narrow exception to the preservation requirement is

inapplicable, we would nevertheless exercise our power to address

defendant’s contention as a matter of discretion in the interest of

justice (see CPL 470.15 [3] [c]).

On the merits, we conclude that defendant’s plea should be

vacated because “[i]t is impossible to have confidence, on a record

like this, that defendant had a clear understanding of what he was

doing when he entered his plea,” based on the prosecutor’s erroneous

statement that consecutive sentences were required and the failure of

the court or defense counsel to correct that error. We “cannot

countenance a conviction that seems to be based on complete confusion

by all concerned” (People v Johnson, 23 NY3d 973, 975-976; see People

v Worden, 22 NY3d 982, 985; People v Williams, 123 AD3d 240, 243-244). 

Where, as here, “the prosecutor, defense counsel and the court

all suffered from the same misunderstanding of the [court’s sentencing

discretion], it would be unreasonable to conclude that defendant

understood it” (Worden, 22 NY3d at 985). We therefore reverse the

judgment, vacate the plea, and remit the matter to County Court for

further proceedings on the indictment. In light of our determination,

we do not reach defendant’s remaining contention.

Entered: May 8, 2015 Frances E. Cafarell

Clerk of the Court