Calendar Date: April 24, 2018Before: Lynch, J.P., Devine, Mulvey, Aarons and Pritzker, JJ.__________William T. Morrison, Albany, for appellant.Robert M. Carney, District Attorney, Schenectady (Tracey A.Brunecz of counsel), for respondent.__________Devine, J.Appeals (1) from a judgment of the Supreme Court (Milano,J.), rendered August 5, 2015 in Schenectady County, convictingdefendant upon his plea of guilty of the crime of burglary in thesecond degree, and (2) from a judgment of said court, renderedApril 26, 2016 in Schenectady County, which resentenceddefendant.The pertinent facts are largely set forth in priordecisions of this Court on appeals from judgments of convictionrendered in this matter in Schenectady County (129 AD3d 1115[2015]) and in Albany County (People v Brewington, 149 AD3d 1418,1418 [2017]; People v Brewington, 127 AD3d 1248 [2015]).Briefly, defendant pleaded guilty to burglary in the seconddegree in this matter and separately pleaded guilty to two countsof burglary in the second degree in Albany County. Defendant wasadjudicated a persistent violent felony offender in both mattersand, in this matter, Supreme Court sentenced him to the agreeduponterm of 18 years to life in prison. Supreme Court furtheragreed to, and did, make the sentence run concurrently to theaggregate prison term of 16ó years to life imposed in AlbanyCounty (129 AD3d at 1115; People v Brewington, 127 AD3d at 1248).Defendant successfully challenged his persistent violentfelony offender status upon appeals from both judgments,resulting in vacatur of the sentences and remittal (129 AD3d at1115; People v Brewington, 127 AD3d at 1248-1249). Uponremittal, defendant was sentenced to an aggregate prison term of20 years and postrelease supervision in Albany County. SupremeCourt, in turn, sentenced defendant to a concurrent prison termof 15 years, and then resentenced him so that a needed term ofpostrelease supervision could be imposed (see Correction Law§ 601-d). Defendant now appeals from the judgments entered uponsentencing and resentencing.We reverse. Defendant pleaded guilty here upon theunderstanding that the imposed sentence would run concurrently tothe aggregate prison sentence of 16ó years to life imposed inAlbany County. He was also aware that a higher aggregatesentence would be imposed in Albany County if he successfullychallenged his status as a persistent violent felony offender,and Supreme Court promised that any resentence in this case wouldrun concurrently to that increased sentence.During the pendency of this appeal, this Court reversed thejudgment of conviction in Albany County, vacated defendant’sguilty plea and remitted for further proceedings (People vBrewington, 149 AD3d at 1418-1419). The sentencing exposure thatprompted defendant’s concern about concurrent sentencing hereaccordingly dissolved and, indeed, he entered into a new pleaarrangement in Albany County where he received, among otherthings, a much shorter prison term of six years. In short, the“reduction of the preexisting sentence [in Albany County]nullified a benefit that was expressly promised and was amaterial inducement to the guilty plea” here (People v Rowland, 8NY3d 342, 345 [2007]; see People v Pichardo, 1 NY3d 126, 129[2003]; People v Price, 113 AD3d 883, 885 [2014]). Inasmuch as“we cannot say that defendant would have foregone pretrial andtrial rights and pleaded guilty” had he known that his guiltyplea in Albany County would be vacated, his plea must also bevacated here (People v Pichardo, 1 NY3d at 130; see People vRowland, 8 NY3d at 345; People v Price, 113 AD3d at 885).Defendant’s remaining claim with respect to the severity of thesentence imposed is academic.Lynch, J.P., Mulvey, Aarons and Pritzker, JJ., concur.ORDERED that the judgments are reversed, on the law, andmatter remitted to the Supreme Court for further proceedings notinconsistent with this Court’s decision.ENTER:Robert D. MaybergerClerk of the Court
