SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1121 

KA 13-01654 

PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ. 

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DAVID STREBER, JR., DEFENDANT-APPELLANT.

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (John R.

Schwartz, A.J.), rendered July 9, 2013. The judgment convicted

defendant, upon his plea of guilty, of criminal possession of stolen

property in the fourth degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law, the motion is granted, the plea is

vacated, and the matter is remitted to Monroe County Court for further

proceedings on the indictment. 

Memorandum: On appeal from a judgment convicting him, upon a

plea of guilty, of criminal possession of stolen property in the

fourth degree (Penal Law § 165.45 [1]), defendant contends that his

plea was not knowingly, voluntarily, or intelligently entered because

County Court failed to inform him of a direct consequence of his plea. 

We agree and therefore reverse the judgment, grant defendant’s motion

to withdraw his guilty plea, vacate the plea, and remit the matter to

County Court for further proceedings on the indictment.

“It is well settled that, in order for a plea to be knowingly,

voluntarily and intelligently entered, a defendant must be advised of

the direct consequences of that plea” (People v Jones, 118 AD3d 1360,

1361; see People v Harnett, 16 NY3d 200, 205; People v Hill, 9 NY3d

189, 191, cert denied 553 US 1048). Direct consequences of a plea are

those that have “a definite, immediate and largely automatic effect on

[a] defendant’s punishment” (People v Ford, 86 NY2d 397, 403) and

include, among other “core components of a defendant’s sentence[,]”

the term of imprisonment (Harnett, 16 NY3d at 205). Here, although

the court during defendant’s arraignment articulated the terms of a

plea offer that included the alternative sentences defendant would

receive if he was or was not successful in the Judicial Diversion

Program, the court did not state those alternative sentences on the
-2- 1121 

KA 13-01654 

record during the plea colloquy. Specifically, although the court

stated during the plea colloquy that defendant would receive a “cap of

felony probation if successful[,]” the court did not articulate the

sentence that defendant would receive if he was unsuccessful. 

Furthermore, the Judicial Diversion Program Contract (Contract)

signed by defendant on the date he pleaded guilty contradicts the

terms of the plea agreement set forth in the transcript of defendant’s

arraignment. Namely, during the arraignment, the court stated, “if

unsuccessful, a cap of one and a half to three. If successful, a cap

of five years probation.” In contrast, the Contract provides that

defendant would receive “felony probation” if he was unsuccessful, but

it does not reflect that defendant was promised any particular

sentence in the event that he was successful with the program. Thus,

even though the court ensured during the plea colloquy that no

promises had been made to defendant “other than the promises placed on

the record and contained in the [C]ontract[,]” the promises made on

the record were inconsistent with the promises made in the Contract.

To the extent that the People contend that the court corrected

those inconsistencies when the Contract was later amended to reflect

the terms of the plea agreement, we reject that contention. The

Contract was amended and re-signed by defendant one week after

defendant’s guilty plea was taken, and the Court of Appeals has made

clear that the court must inform the defendant of the direct

consequences of a plea “[p]rior to accepting a guilty plea” (Hill, 9

NY3d at 191). Moreover, there is no evidence in the record that

defendant was afforded an opportunity to withdraw his guilty plea on

the date he re-signed the amended Contract. Finally, we reject the

People’s contention that the court’s amendment of the Contract was

merely ministerial or clerical in nature (see People v Howard, 1 AD3d

1015, 1016; see also People v Minaya, 54 NY2d 360, 364, cert denied

455 US 1024). The record is insufficient for us to conclude that the

court’s amendment “fully comported with the expectations of the court,

the prosecutor, and the defendant at the time the plea was originally

entered” (Howard, 1 AD3d at 1016 [internal quotation marks omitted]),

and thus the court was not permitted to make the amendment as a

ministerial or clerical matter.

Entered: December 23, 2016 Frances E. Cafarell

Clerk of the Court