author: Pigott, J. Fahey, J.

text:
    [51 NE3d 521, 32 NYS3d 10]
    Yaniveth R., an Infant, by Her Mother and Natural Guardian, Ramona S., et al., Appellants, v LTD Realty Co. et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Argued February 16, 2016;
    decided April 5, 2016

      Levy Konigsberg, LLP, New York City (Alan J. Konigsberg and Brendan E. Little of counsel), for appellants.

      Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead (Susan Weihs Darlington and Josephine De-Luca of counsel), for respondents.

      McGaw, Alventosa & Zajac, Jericho (.Andrew Zajac and Dawn C. DiSimone of counsel), Margaret G. Klein, Defense Association of New York, Inc., Roña L. Platt, and Brendan T. Fitzpatrick, for Defense Association of New York, Inc., amicus curiae.

      Herzfeld & Rubin, P.C., New York City (Linda M. Brown and David B. Hamm of counsel), for New York City Housing Authority, amicus curiae.

      Matthew J. Chachére, Northern Manhattan Improvement Corp. Legal Services, New York City and Andrew Goldberg, New York City, for New York City Coalition to End Lead Poisoning and another, amici curiae.
   OPINION OF THE COURT

Pigott, J.

New York City adopted lead abatement legislation in 1982 that imposes a duty on landlords to remove lead-based paint in any dwelling unit in which a child six years of age and under resides (see Administrative Code of City of NY former §27-2013 [h] [1], as added by Local Law No. 1 [1982] of City of NY). The issue in this case is whether a child “reside [s]” in an apartment containing lead-based paint, thereby triggering a landlord’s duty under Local Law 1, when the child does not live in the apartment but spends approximately 50 hours per week there with a caregiver.

I.

Plaintiff Yaniveth R. was born in January 1997. She lived with her father and mother, plaintiff Ramona S., in an apartment in the Bronx from early 1997 until 2002. Yaniveth’s paternal grandmother lived nearby on the first floor of an apartment building owned by defendants LTD Realty Co. and LTD Realty Co., LLC. When Yaniveth was three months old, her grandmother began watching her five days a week at her apartment, from approximately 9:30 a.m. until 6:30 or 7:00 p.m., while Yaniveth’s parents were at work. Yaniveth returned to her parents’ apartment each evening, where she lived with her mother, father and older sister. According to both Ramona and Yaniveth’s grandmother, Yaniveth did not live with the grandmother — she lived only at her parents’ apartment.

In January 1998, Yaniveth was found to have an elevated blood lead level. The New York City Department of Health identified hazardous lead-paint conditions at the grandmother’s apartment and issued defendants an order to abate.

In 2006, Ramona commenced this negligence action individually and on Yaniveth’s behalf against defendants and related individuals. Plaintiffs alleged that, because Yaniveth “spent a significant amount of time” in her grandmother’s apartment, defendants owed her a duty to abate the apartment of hazardous lead-paint conditions pursuant to former section 27-2013 (h) (1) of the Administrative Code, and that their failure to do so caused plaintiffs’ injuries. Former section 27-2013 (h) provides:

“The owner of a multiple dwelling shall remove or cover in a manner approved by the department any paint or other similar surface!-]coating material having a reading of 0.7 milligrams of lead per square centimeter or greater or containing more than 0.5 percent of metallic lead based on the nonvolatile content of the paint or other similar surface-coating material on the interior walls, ceilings, doors, window sills or moldings in any dwelling unit in which a child or children six (6) years of age and under reside” (Administrative Code former § 27-2013 [h] [l]).

Defendants moved for summary judgment, arguing that, under Local Law 1, they owed no duty to remove lead-based paint from the grandmother’s apartment because Yaniveth did not “reside” there. In the absence of a duty, defendants claimed, there can be no negligence.

Supreme Court granted defendants’ motion and dismissed the complaint. The Appellate Division unanimously affirmed, holding that defendants established prima facie that while the infant plaintiff was cared for at the apartment, during the day, she resided elsewhere, with her parents, and that “plaintiffs failed to raise an issue of fact as to the infant’s residence” (120 AD3d 1142, 1142 [1st Dept 2014]). We granted plaintiffs leave to appeal (24 NY3d 912 [2014]) and now affirm.

II

“[A] landlord may be held liable for injury caused by a defective or dangerous condition upon the leased premises if the landlord is under a statutory or contractual duty to maintain the premises in repair” (Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 642-643 [1996]). Local Law 1 imposes such a duty, requiring landlords to “remove or cover” lead-based paint “in any dwelling unit in which a child or children six (6) years of age and under reside” (Administrative Code former § 27-2013 [h] [1] [emphasis added]).

This appeal turns on the meaning of the word “reside.” Plaintiffs contend that we should interpret the term as broadly as possible, to include places in which a child is physically present or spends a substantial amount of time. By that definition, plaintiffs claim Yaniveth “reside [d]” in her grandmother’s apartment and therefore Local Law 1 required defendants to abate the premises of lead-based paint. If, however, the word “reside” requires something more than mere physical presence in a place (as the courts below determined), then Yaniveth did not “reside” in her grandmother’s apartment, defendants did not owe a duty under the statute and plaintiffs’ negligence claim must fail (see Juarez, 88 NY2d at 647; Rivera v Nelson Realty, LLC, 7 NY3d 530, 534-535 [2006] [dismissing plaintiff’s complaint where neither the common law nor any statute imposed a duty on landlords to cover radiators in apartments in which young children live]).

Local Law 1 does not define the word “reside.” In the absence of a statutory definition, “we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts in determining the meaning of a word or phrase” (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479-480 [2001] [internal quotation marks omitted]; see also Matter of Orens v Novello, 99 NY2d 180, 185-186 [2002] [relying on Merriam-Webster’s and Black’s Law Dictionary to ascertain the meaning of the term “lay member” in Public Health Law § 230 (6)]).

Dictionaries from the relevant time period define “reside” as “to dwell permanently or continuously: occupy a place as one’s legal domicile” (Merriam-Webster’s New Collegiate Dictionary 1003 [9th ed 1986]) and “[to] have a settled abode for a time: have one’s residence or domicile” (Webster’s Third New International Dictionary, Unabridged 1931 [Merriam-Webster 1981]). According to Webster’s Third, “reside” is the “preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode” (id.). Black’s Law Dictionary notes that “residence” “is made up of fact and intention, the fact of abode and the intention of remaining, and is a combination of acts and intention. Residence implies something more than mere physical presence and something less than domicile” (Black’s Law Dictionary 1176 [5th ed 1979] [citation omitted]).

This understanding of the term “reside” is consistent with the rule we set out in Matter of Newcomb (192 NY 238 [1908]). Although plaintiffs cite Newcomb for the proposition that “[residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile” (id. at 250), our opinion made clear that “Residence means living in a particular locality,” even if a person does not intend to make that place a “fixed and permanent home,” i.e., a domicile {id. [emphasis added]). As we stated more recently, a person’s “residence” entails “something more than temporary or physical presence,” with some “degree of permanence and [an] intention to remain” (Dean v Tower Ins. Co. of N.Y., 19 NY3d 704, 708 [2012]). Thus, “[although it is true that a person may have more than one residence [,] ... to consider a place as such, he must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanency” (Hammerman v Louis Watch Co., 7 AD2d 817, 818 [3d Dept 1958]; see also Katz v Siroty, 62 AD2d 1011, 1012 [2d Dept 1978] [holding that plaintiff did not establish a second residence at his sister’s apartment in Manhattan even though he kept a room there and occasionally stayed overnight for business because, citing the rule in Ham-merman, he did not “have the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency”]).

Nothing in the legislative history of Local Law 1 suggests that the City Council meant anything other than this understanding of the term “reside.” We presume the City was familiar with the common meaning and usage of the words it used as well as existing decisional law (cf. Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 157 [1987]), which, in this case, understood residence as something more than physical presence but something less than domicile— living in a particular place with the intent to retain it as a residence (see Newcomb, 192 NY at 250; Hammerman, 7 AD2d at 818). Had the City intended to expand the meaning of the word “reside” to include children who do not actually live in an apartment but spend significant amounts of time there, it could have used words to that effect (see Orens, 99 NY2d at 187).

Applying these principles of statutory construction to Local Law 1, we agree with the courts below that Yaniveth did not “reside” in her grandmother’s apartment. Both Ramona and Yaniveth’s grandmother testified that Yaniveth did not live at the apartment, and there is no evidence in the record that they intended for her to live there or to retain the apartment as a residence. Yaniveth visited her grandmother’s apartment during the day solely for the purpose of child care, while her parents were at work. Although a person may reside at more than one location, spending 50 hours per week in an apartment with a noncustodial caregiver is insufficient to impose liability on a landlord under Local Law 1.

Contrary to the dissent’s assertion, we do not “eliminate [ ] the distinction between ‘residence’ and ‘domicile’ ” or “effectively meant ] that a child may have only one ‘residence’ ” under Local Law 1 (dissenting op at 197). We agree that a person may reside in more than one place, but that does not mean that every place in which a person spends time constitutes a residence. The question of whether a person “reside [s]” in a given location is a fact-driven inquiry that depends on the totality of the circumstances, and although there is no question of fact in this case that Yaniveth did not reside in her grandmother’s apartment, there are a number of situations in which a child may reside in more than one apartment, such as in a joint custody situation or other shared living arrangement.

The courts below properly concluded that defendants were entitled to summary judgment and that plaintiffs’ claim, alleging violations of Local Law 1, was properly dismissed. To the extent plaintiffs also alleged a breach of defendants’ contractual duty to repair the premises based on traditional common-law principles, that claim too must fail (see Chapman v Silber, 97 NY2d 9, 15 [2001] [holding that a plaintiff must show the landlord “knew that a young child lived in the apartment” to survive a defendant landlord’s motion for summary judgment in a lead paint poisoning case based on traditional common-law principles and a landlord’s contractual duty to repair]).

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

Fahey, J.

(dissenting). Plaintiff Yaniveth R. was born in January 1997. For the first year of her life she spent days with her grandmother in an apartment owned by defendant LTD Realty Co. She was there approximately 50 hours a week.

One year later, during a routine medical checkup she was diagnosed with an elevated blood lead level. It is alleged that the exposure came from lead-based paint in the apartment. Beyond that it is alleged that as a result of this exposure Yani-veth suffers from brain damage and various cognitive deficits.

The local law at issue was designed to prevent and protect children from the injuries we see in this case.

Here, at issue is Administrative Code of the City of New York former § 27-2013 (h) (1) (as added by Local Law No. 1 [1982] of City of NY), which was enacted in 1982 and which required that

“[t]he owner of a multiple dwelling . . . remove or cover in a[n] [approved] manner . . . any paint or other similar surfacecoating material having a reading of 0.7 milligrams of lead per square centimeter or greater or containing more than 0.5 percent of metallic lead based on the non-volatile content of the paint or other similar surface-coating material on the interior walls, ceilings, doors, window sills or moldings in any dwelling unit in which a child or children six (6) years of age and under reside” (emphasis added).

Local Law 1 was eventually repealed and transferred to an article of title 27 of the Administrative Code containing lead poisoning prevention and control laws. Administrative Code § 27-2056.3 provides, in relevant part, that

“[t]he existence of a lead-based paint hazard in any multiple dwelling where a child of applicable age resides is hereby declared to constitute a condition dangerous to life and health. An owner shall take action to prevent the reasonably foreseeable occurrence of such a condition and shall expeditiously remediate such condition and any underlying defect . . . .” (Emphasis added.)

For its part, Administrative Code § 27-2056.5 (a) contains a presumption that, “[i]n any multiple dwelling erected prior to January 1, 1960, . . . the paint or other similar surface-coating material in any dwelling unit where a child of applicable age resides or in the common areas is lead-based paint” (emphasis added). Section 27-2056.18 of the Administrative Code, in turn, defines “ ‘applicable age’ ” as “ ‘under seven years of age’ for at least one calendar year from [Aug. 2, 2004].” However, neither in that section nor in the balance of the part of title 27 in which the lead poisoning prevention and control laws appear is the term “resides” defined. Local Law 1, which the parties agree governs this case, similarly did not define the term “reside” as used therein, and the question of the meaning of that term is squarely before this Court on this appeal.

I agree with the majority that, “[generally, a landlord may be held liable for injury caused by a defective or dangerous condition upon the leased premises if the landlord is under a statutory or contractual duty to maintain the premises . . . .” (Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 642 [1996]; see majority op at 191.) I also agree with the majority that Local Law 1 imposed such a duty inasmuch as it required landlords to “remove or cover” lead-based paint “in any . . . unit [of a multiple dwelling] in which a child or children six (6) years of age and under reside” (Local Law 1; see majority op at 191). I disagree with the majority, however, to the extent it concludes that the word “reside,” as used in Local Law 1, is to be narrowly interpreted so as to require that a person “liv[e] in a particular place with the intent to retain it as a residence” (majority op at 193) and, by extension, to remove Yaniveth from the coverage of that law. For that reason I respectfully dissent and would reverse the Appellate Division order, deny the motion for summary judgment in its entirety, and reinstate the complaint as against defendant LTD Realty Co.

“In [any] matter [ ] of statutory interpretation, our primary consideration is to discern and give effect to the [enactor’s] intention” (Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120 [2012]). “[W]e must look first to the statutory text, which is The clearest indicator of legislative intent’ ” (Matter of New York County Lawyers’ Assn. v Bloomberg, 19 NY3d 712, 721 [2012], rearg denied 20 NY3d 983 [2012], quoting Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). Our textual review must be conducted so as to give “the words employed” their “plain meaning” and “natural signification” (id. [internal quotation marks omitted]). Moreover, where, as here, there is no “controlling statutory definition, we . . . [may use] dictionary definitions as ‘useful guideposts’ in determining the meaning of a word or phrase” (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479-480 [2001], quoting Matter of Village of Chestnut Ridge v Howard, 92 NY2d 718, 723 [1999]).

At least one dictionary from the relevant time period defines “reside” as to “have a settled abode for a time: have one’s residence or domicile” (Webster’s Third New International Dictionary, Unabridged 1931 [Merriam-Webster 1981]; see majority op at 192). That dictionary specifies that “reside” “may be the preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his [or her] fixed, settled, or legal abode” (Webster’s Third New International Dictionary, Unabridged 1931 [Merriam-Webster 1981]; see majority op at 192).

The same dictionary, however, acknowledges that “reside” had been defined as “to settle oneself or a thing in a place: be stationed: REMAIN, STAY,” and as “to have an abiding place” (Webster’s Third New International Dictionary, Unabridged 1931 [Merriam-Webster 1981]). Of course, a child may abide or be stationed in more than one place. Consequently, the foregoing definition leaves open the possibility that a child may have more than one place of residence, which is perfectly consistent with this Court’s conclusion in Matter of Newcomb that a person can have only one domicile, but may reside at more than one location (192 NY 238, 250 [1908] [“(A) person may have two places of residence . . . but only one domicile .... Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile”]).

The intent of Local Law 1 is obvious: its enactors sought to shield young children, that is, those who cannot protect themselves, from the dangers of lead-based paint poisoning. The will of a legislative body is discernable from its diction (see Bryant v New York City Health & Hosps. Corp., 93 NY2d 592, 602 [1999]), and the use of the word “reside” in Local Law 1 signals a desire to protect young children who may be exposed to lead-based paint in more than one location. To conclude otherwise would be to say that a child — any person, in fact— may reside in only one place. The majority opinion eliminates the distinction between “residence” and “domicile” established in Newcomb (192 NY at 250). It effectively means that a child may have only one “residence.”

The impact of today’s decision transcends this case. It threatens the ability of those young children who are covered by Local Law 1 and who were subject to either a joint custody agreement or a comparable shared living arrangement at the time of their exposure to lead-based paint to recover damages for their resultant injuries. It threatens the ability of children who are covered by the successor to Local Law 1 (see Administrative Code § 27-2056.1 et seq.) and who are subject to similar living arrangements to recover damages for the same harm. It also beseeches a legislative response.

Chief Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein and Garcia concur; Judge Fahey dissents in an opinion.

Order affirmed, with costs.

      . Section 27-2013 (h) was subsequently repealed by the New York City Childhood Lead Poisoning Prevention Act of 2003 (Local Law No. 1 [2004] of City of NY) and transferred to sections 27-2056.1 et seq. of the Administrative Code. The parties agree that the version of Local Law 1 enacted in 1982 was in force during Yaniveth’s exposure and applies to plaintiffs’ claim. Unless otherwise noted, “Local Law 1” as used in this opinion refers to Local Law 1 of 1982.

      . Although dictionary definitions that equate “residence” with “domicile” fail to recognize the legal distinction we have drawn between those terms, they are a useful tool of statutory construction to the extent that they reflect the common meaning and usage of the term “reside” at the time the City Council enacted Local Law 1.


source: Caselaw Access Project

author: Rivera, J. Pigott, J.

license: Public Domain

text:
    [51 NE3d 545, 32 NYS3d 34]
    The People of the State of New York, Respondent, v Marcellus Johnson, Appellant.
    Argued February 16, 2016;
    decided April 5, 2016

      Stanley E. Neustadter, Cardozo Appeals Clinic, New York City (Jonathan H. Oberman of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Patrick J. Hynes of counsel), for respondent.

      The Legal Aid Society, New York City (Steven B. Wasserman of counsel), for The Legal Aid Society, amicus curiae.

      Lisa Schreibersdorf, Brooklyn Defender Services, Brooklyn, and Fried, Frank, Harris, Shriver & Jacobson LLP, New York City (Aleksandr B. Livshits and Adam Rose of counsel), for Brooklyn Defender Services, amicus curiae.
   OPINION OF THE COURT

Rivera, J.

Defendant challenges the People’s use at his criminal trial of excerpts from certain recorded telephone calls defendant made to family and friends during his detention at Rikers Island Correctional Facility. The calls were recorded and made available to the prosecution by New York City’s Department of Correction (the Department), in accordance with the Department’s policy and practice of monitoring inmates’ telephone calls, and releasing those recordings, upon request, to the City’s District Attorneys’ Offices.

The conditions attendant to pretrial detention, which by its nature imposes limits on communication with the outside world, may, as defendant argues, result in the unwise and imprudent use of unprivileged telephone calls to communicate matters related to a detainee’s prosecution. However, we are constrained by the law applicable to the arguments, as narrowed by defendant, to conclude that on the record before us defendant is not entitled to a new trial. Therefore, the Appellate Division should be affirmed.

I. Regulatory Framework

Under the Rules of the City of New York inmates are permitted to make calls during their incarceration, subject to the Department’s authority to listen to and monitor all calls not otherwise exempted or privileged. 40 RCNY 1-10 provides, in relevant part,

“(a) Policy. Prisoners are entitled to make periodic telephone calls. A sufficient number of telephones to meet the requirements of this section shall be installed in the housing areas of each facility. . . .
“(h) Supervision of telephone calls. Upon implementation of appropriate procedures, prisoner telephone calls may be listened to or monitored only when legally sufficient notice has been given to the prisoners. Telephone calls to the Board of Correction, Inspector General and other monitoring bodies, as well as to treating physicians and clinicians, attorneys and clergy shall not be listened to or monitored.” (40 RCNY 1-10 [a], [h].)

The Department has implemented its policy and procedures for recording and monitoring inmate telephone calls in an Operations Order. The Order states the Department “shall record all inmate telephone calls and retain these recordings,” with the exception of calls to inmates’ attorneys and other persons similarly included in the Department’s “Do Not Record List.”

The Operations Order further provides for three different notices to advise inmates that telephone calls are recorded and/or monitored. One notice is contained in signs posted near the telephones available for inmate use, and states in English and Spanish that “[i]nmate telephone conversations are subject to electronic recording and/or monitoring in accordance with Departmental policy. An inmate’s use of institutional telephones constitutes consent to this recording and/or monitoring.” Another notice is set forth in the Inmate Handbook, advising inmates “that calls may be recorded and/or monitored.” Yet another notice is played in English and Spanish at the beginning of each call, and informs the inmate that “[t]his call may be recorded and monitored.”

Although the Department indicates that it records all non-privileged calls, it only monitors on a needs basis, meaning a staff member listens to the recorded call when a situation “prompts” review. As a general matter, the Department has identified the types of calls that trigger monitoring as those involving institutional and public safety and security.

The recordings are confidential and not available to the public, but New York City’s District Attorneys’ Offices may request a copy of an inmate’s recorded call. Such requests are decided within three business days by the Department’s Deputy Commissioner for Legal Matters, although the Operations Order does not explain the criteria for granting or denying such requests. Upon approval of a request, the copy of the recording is turned over to the District Attorney’s representative, who signs a form indicating receipt.

II. Prosecution’s Use of Defendant’s Recorded Calls at Trial

Defendant was arrested on charges of robbery, and when he could not make bail he was remanded to Rikers Island. The People acquired from the Department, following the procedures laid out in the Operations Order and through the use of a subpoena duces tecum, dozens of recordings of telephone conversations that defendant placed to his friends and family.

The People sought to play excerpts of those conversations at trial. In defendant’s motion in limine to preclude the use of the recordings he argued that (1) the disclosure was unauthorized and unwarranted under the Department’s Operations Order, and (2) disclosure to the prosecutor undermined defendant’s Sixth Amendment right to counsel. The court denied the motion.

At trial, the prosecutor introduced into evidence, played for the jury, and replayed on summation excerpts from nine of defendant’s recorded telephone calls. In these calls the defendant made several incriminating statements and repeatedly used offensive and vulgar language to discuss the victim and other individuals involved in the robbery.

The jury convicted defendant of two counts of third-degree robbery (Penal Law § 160.05), three counts of fourth-degree larceny (Penal Law § 155.30 [4], [5]), and one count of criminal possession of stolen property (Penal Law § 165.45 [2]). The Appellate Division summarily rejected defendant’s challenge to the admission of the recordings, finding that the calls were admissible, “notwithstanding that defendant’s right to counsel had attached” (120 AD3d 1154, 1155 [1st Dept 2014]).

A Judge of this Court granted leave to appeal (25 NY3d 951 [2015]).

III. Defendant’s Claims

In order to properly address and frame defendant’s legal claims, we first clarify what defendant does not allege on this appeal. He does not allege that any conversations with his defense counsel were recorded and admitted at trial, or that the Department permits such monitoring. To the contrary, defendant recognizes that the Operations Order expressly prohibits the recording and monitoring of conversations with an inmate’s attorney. Nor does defendant assert that the intention of the City’s regulation or the Department’s Operations Order is to create and collect information strictly for use by the prosecution against a detainee at trial. Defendant candidly admits that the Department has a legitimate interest in recording and monitoring detainee telephone communications.

Defendant instead challenges what he describes as the Department’s practice of “automatic, unmonitored harvesting of intimate conversations of pre-trial inmates,” and the subsequent dissemination of the Department’s recordings to District Attorneys’ Offices for use in criminal prosecutions. Defendant claims the practice violated his right to counsel, exceeds the scope of the Department’s regulatory authority, and was conducted without defendant’s consent. The claims are either without merit or unpreserved and therefore do not warrant reversal and a new trial.

A. Sixth Amendment Violation

Defendant claims the People, by combing through all the telephone calls, are able to obtain information about a defendant’s defense strategy and decision-making, outside the presence of counsel, in violation of his Sixth Amendment right to counsel. Essentially, defendant claims that the Department acts as an agent for the District Attorney in eliciting potentially damaging statements merely by recording the calls. He points to no individual that the District Attorney’s Office, or for that matter the Department, employed as an agent of the government who acted in a manner to prompt or provoke information from defendant. We therefore find no support in the law or facts of this case for defendant’s constitutional claim.

The Sixth Amendment right to counsel prohibits the use of incriminating statements deliberately elicited from a defendant by government agents (see Fellers v United States, 540 US 519, 524 [2004]; United States v Henry, 447 US 264, 270 [1980]). As this Court has recognized, the “right to counsel protects persons, whether in custody or not, against the use of incriminating statements made as the result of governmental interrogation, including prosecutorial inducements to make such statements without the assistance of counsel” (People v Velasquez, 68 NY2d 533, 536 [1986]). Moreover, “the right to counsel protects an accused in pretrial dealings with the overwhelming, coercive power of the State by excluding incriminating evidence obtained by the State in violation of that right. Concomitantly, the exclusion of incriminating evidence obtained by agents of the State operates to deter their interference with the rights of the accused” (id. at 537 [citations omitted]). Thus, a violation of the right to counsel requires the “involvement of the State in eliciting that evidence” (id.).

Here, the Department did not serve as an agent of the State when it recorded the calls it turned over to the District Attorney’s Office. Defendant was not induced by any promise, or coerced by the Department, to call friends and family and make statements detrimental to his defense. Nothing in the record suggests that the Department solicited, elicited, encouraged or provoked these conversations. Moreover, defendant made the telephone calls aware that he was being recorded, and the mere act of recording is no different from an informer sitting mute, not provoking or prompting conversation but merely listening to a statement freely made. Under these circumstances, where “the government’s role is limited to the passive receipt of . . . information, the informer is not, as a matter of law, an agent of the government” (People v Cardona, 41 NY2d 333, 335 [1977]).

Defendant and amici assert that the particular circumstances of detention support treating the Department as an agent because detainees have limited access to outsiders, including their lawyers. Thus, left without options available to those able to make bail, a detainee, out of necessity, makes statements during telephone conversations that are detrimental to the defense. However accurate this description may be of the realities of the Rikers Island pretrial detention environment, and the opportunity presented to prosecutors by the conditions under which detainees are confined, it does not establish the Department acted as an agent in defendant’s case.

B. Defendant’s Ultra Vires Claim

Defendant argues the Department acted beyond the scope of its authority as provided for in 40 RCNY 1-10 (h), by automatically disseminating recordings of conversations that are unrelated to the Department’s legitimate purpose of monitoring threats to institutional security, and without the Department having first assessed the propriety of the District Attorney’s request. Regardless of whether the record supports defendant’s allegations of ultra vires conduct, he is not entitled to suppression or preclusion of the excerpts on these grounds.

While “violation of a statute does not, without more, justify suppressing the evidence to which that violation leads” (People v Greene, 9 NY3d 277, 280 [2007], citing People v Patterson, 78 NY2d 711, 716-717 [1991]), suppression is warranted when the violation implicates a constitutionally protected right (Patterson, 78 NY2d at 717). However, defendant fails as a threshold matter to identify a statutory right violated by the Department, instead relying on 40 RCNY 1-10 (h). We need not determine in this case whether a regulatory violation also implicates the concerns that animate the exception recognized in Patterson because even if it did it would not change our analysis. Section 1-10 (h) specifically provides that inmate telephone calls with attorneys “shall not be listened to or monitored.” Thus, section 1-10 (h) only implicates the Sixth Amendment right to counsel to the extent it guards against violations of privileged attorney-client communications. It does not prohibit the Department’s supervision over inmates’ telephone conversations with friends and families involving non-privileged matters, such as the calls at issue in defendant’s case.

C. Lack of Consent

Defendant alleges that he did not consent to the Department’s dissemination of his recorded conversations simply by using the Rikers Island telephones. According to defendant, his consent cannot be implied because he was never informed that the recordings may be released to the prosecutor. Defendant acknowledges, though, that any such defective notice could be ameliorated by an express Department notification that the recorded calls may be turned over to the District Attorney.

However, we do not reach the merits of this claim, or address whether additional notice by the Department would serve as a best practice, because the claim itself is unpreserved. As the record establishes, defendant failed to argue to the trial court, as he does now, that his consent cannot be broader than the notice provided to him (see People v Gray, 86 NY2d 10, 19 [1995] [“in order to preserve a claim of error ... a defendant must make his or her position known to the court”]).

IV.

Our resolution of the narrowly drawn issues presented on this appeal should not be interpreted as this Court’s approval of these practices. Nor does our holding limit the traditional function of the trial judge in criminal matters. Rather, due to the possibility of prejudice inherent in the prosecutor’s use of inmate recordings, the trial judge’s role as gatekeeper remains unchanged and necessary to ensure compliance with constitutional mandates and the usual rules of evidence and criminal procedure.

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

Pigott, J.

(concurring). I agree with the majority’s conclusion and with its analysis of the legal issues defendant has raised. In my view, however, the District Attorney’s direct and unregulated access to all of an inmate’s non-privileged telephone conversations deserves further mention. The current arrangement between the Department of Correction and the District Attorney’s office creates a serious potential for abuse and may undermine the constitutional rights of defendants who are financially unable to make bail. Something needs to change.

Pretrial detainees like defendant are presumed innocent until proved guilty. Because they have not yet been convicted of a crime, the State’s only legitimate purpose for detaining them is to assure their presence at trial, and their liberty may not be restrained more than necessary to accomplish that result (see Cooper v Morin, 49 NY2d 69, 81 [1979], cert denied sub nom. Lombard v Cooper, 446 US 984 [1980]; 4 William Blackstone, Commentaries on the Laws of England at 300 [explaining that pretrial detention is authorized “only for safe custody, and not for punishment”]).

The Department of Correction also has a legitimate interest in maintaining the safety and security of its detention facilities (see Campbell v McGruder, 580 F2d 521, 529 [DC Cir 1978]; Cooper, 49 NY2d at 81), and thus has “broad latitude to adopt rules that protect the safety of inmates and corrections personnel and prevent escape or unlawful entry” (United States v Cohen, 796 F2d 20, 22 [2d Cir 1986], citing Bell v Wolfish, 441 US 520, 547 [1979]). To that end and for that limited purpose, the Rules of the City of New York authorize the Department to record and monitor all inmates’ telephone conversations with the exception of those placed to attorneys, physicians and clergy (see 40 RCNY 1-10 [h]). Prisoners are clearly and repeatedly cautioned that “telephone conversations are subject to electronic recording and/or monitoring in accordance with Departmental policy” and that the “use of institutional telephones constitutes consent to this recording and/or monitoring.”

The Department’s purpose in recording and monitoring these conversations is limited to ensuring the safety and security of its facilities, not harvesting evidence for the prosecution. Yet the People admit that, unknown to defendants, they routinely obtain and review such recordings before trial, in search of anything that can be used against them. The People justify this practice principally on the basis of consent: because the calls were recorded by the Department, and the detainee knew the Department could record and/or monitor the calls, he has no expectation of privacy in the conversations and is not entitled to shield them from the prosecution. But there is “a major distinction between prison authorities having access to prisoners’ phone calls for purposes of prison security and discipline, and the prosecutors of that pretrial prisoner having the same access for purposes of gaining advance knowledge of the pretrial prisoner’s trial strategy and potential witnesses,” particularly in situations (not present in this case) in which a prisoner is representing himself pro se (United States v Mitan, 2009 WL 3081727, *4, 2009 US Dist LEXIS 88886, *11 [ED Pa, Sept. 25, 2009, Nos. 08-760-1, 08-760-2]).

It has long been known that a defendant at liberty pending trial already stands a better chance of not being convicted or, if convicted, of not receiving a prison sentence, than those who are detained before trial, even after controlling for factors such as prior criminal record, seriousness of the charge, bail amount, type of counsel, community ties and employment status (see Barker v Wingo, 407 US 514, 533 n 35 [1972]; McGruder, 580 F2d at 531, citing Ares, Rankin & Sturz, The Manhattan Bail Project: An Interim Report on the Use of Pre-Trial Parole, 38 NYU L Rev 67, 86 [1963], and Rankin, The Effect of Pretrial Detention, 39 NYU L Rev 641, 665 [1964]). One study showed that 64% of those continuously in jail from arraignment to adjudication were sentenced to prison, while only 17% of defendants who made bail received prison sentences (McGinnis v Royster, 410 US 263, 282-283 [1973, Douglas, J., dissenting], citing Vera Institute of Justice, Programs in Criminal Justice Reform, Ten-Year Report 1961-1971 [1972]). Another study found that 77% of defendants who were detained before trial were eventually convicted of some offense, compared to 55% of those released pending disposition (Andrew D. Leipold, How the Pretrial Process Contributes to Wrongful Convictions, 42 Am Crim L Rev 1123, 1131 n 27 [2005] [citing a 2000 study of the Bureau of Justice Statistics]).

One explanation for this inequity is “(t)he limitations imposed by incarceration” (McGruder, 580 F2d at 532). Pretrial detention hampers a defendant’s preparation of his defense by limiting his “ability to gather evidence [and] contact witnesses” during the most critical period of the proceedings {Barker, 407 US at 533; see also Powell v Alabama, 287 US 45, 57 [1932]). During that important pretrial period, defendant, either acting pro se or with the assistance of counsel, negotiates for dismissal or reduction of the charges, engages in motion practice, considers offers to plead guilty and decides which witnesses to call (see United States v Vitta, 653 F Supp 320, 337 [ED NY 1986], citing Wald, Pretrial Detention and Ultimate Freedom: A Statistical Study, 39 NYU L Rev 631, 633 [1964]). Indeed, the defendant “is often the key source of factual details on which to base pretrial motions and negotiations” (id.). A defendant free on bail or on his own recognizance can therefore make good use of that liberty by consulting and participating fully with counsel in time-consuming preparations for trial, including tracking down witnesses and evidentiary leads (id.).

The detained suspect cannot make these same preparations because he lacks a similar ability to contact witnesses and gather evidence. Moreover, any telephone conversations with family members or potential witnesses are now turned over to the prosecution for it to review. Not only do prosecutors obtain critical information about key defense witnesses and possible defenses well before those materials would have been disclosed, but they can also use innocuous details to their advantage in negotiating plea deals, for example, by combing through a detainee’s recorded conversations for information about his financial limitations or family obligations. The amici suggest that even more unsavory situations exist, such as a prosecutor persuading a defendant’s wife to testify against him after confronting her with the defendant’s recorded conversations revealing an extramarital affair. Although the prosecutor in this case did not engage in any of these more troubling actions and defense counsel did not move for a mistrial or raise a claim of prosecutorial misconduct, it is easy to see the potential for abuse.

And what is the alternative, the People say? Don’t discuss any details about your case over the telephone except with your attorney; don’t ask your spouse to look into a particular witness’s availability or get medical records in preparation for your defense; don’t call your friend to ask for help tracking down necessary evidence; essentially, don’t talk to anyone other than your attorney about anything related to your case unless you want the prosecutor to know about it. This is not a viable alternative, at least not one that would enable a defendant adequately to “prepare [a] defense . . . without knowledge of the prosecutors” (Mitan, 2009 WL 3081727, *3, 2009 US Dist LEXIS 88886, *8).

Faced with the possibility that anything a defendant says over the phone can (and will) be used against him at trial, the defendant’s only real choice is not to use the phones at all. I cannot sanction that result. Trial courts must be vigilant to protect the detainees’ constitutional rights, and consideration should be given to placing limitations on the prosecutor’s ability to obtain these recordings. Although the recordings in this case were obtained by the prosecutor through a subpoena duces tecum and reviewed by Supreme Court prior to disclosure, in other cases the People’s unfettered access can prejudice a defendant and impair his ability to prepare a defense, which “skews the fairness of the entire system” (Barker, 407 US at 532).

Chief Judge DiFiore and Judges Pigott, Abdus-Salaam, Stein, Fahey and Garcia concur; Judge Pigott in a separate concurring opinion.

Order affirmed.

       Amici in support of defendant’s Sixth Amendment argument claim that examples exist where the People’s access to telephone calls to friends and family provided insight into possible defense strategies and preparation, such as whether to employ an alibi defense. However, since defendant has made no claim that in his case any trial strategy or defense was revealed to the prosecutor we do not address this issue.


author: Abdus-Salaam, J. Rivera, J.

text:
    [51 NE3d 528, 32 NYS3d 17]
    The People of the State of New York, Appellant, v Christian Williams, Respondent.
    Argued February 16, 2016;
    decided April 5, 2016

      Cyrus R. Vance, Jr., District Attorney, New York City (Beth Fisch Cohen and Christopher P. Marinelli of counsel), for appellant.

      The Legal Aid Society, New York City (Anita Aboagye-Agyeman of counsel), and Richard M. Greenberg, Office of the Appellate Defender, New York City (Alexandra Keeling of counsel), for respondent.
   OPINION OF THE COURT

Abdus-Salaam, J.

When a defendant pleads guilty to a crime, he or she generally must move to withdraw the plea or otherwise object to its entry prior to the imposition of sentence to preserve a challenge to the validity of the plea for appellate review (see People v Toxey, 86 NY2d 725, 726 [1995]; People v Claudio, 64 NY2d 858, 858-859 [1985]). In a line of cases beginning with People v Lopez (71 NY2d 662 [1988]), however, we clarified the existence of a narrow exception to the preservation requirement in rare cases where the defendant lacks a reasonable opportunity to object to a fundamental defect in the plea which is clear on the face of the record and to which “the court’s attention should have been instantly drawn,” such that “the salutary purpose of the preservation rule is . . . not jeopardized” (id. at 666). On this appeal, we must apply the foregoing principles to determine whether, prior to the final imposition of his sentence, defendant had a practical ability to challenge the validity of his guilty plea on the theory that it was induced by the promise of an unlawful sentence, for such an ability to object would preclude the application of the exception to the preservation rule delineated in Lopez and its progeny. On the record before us, we hold that defendant had a reasonable opportunity to attack the legality of his guilty plea in the court of first instance on the same grounds now advanced on appeal. Because defendant did not take advantage of that opportunity, he failed to preserve his current claim for appellate review.

I.

After his arrest and indictment on drug sale charges, defendant Christian Williams entered into a negotiated plea bargain with the People. Specifically, at a scheduled court proceeding, defense counsel announced that the People had offered a recommended sentence of three years in prison in exchange for defendant’s guilty plea to criminal sale of a controlled substance in the third degree (see Penal Law § 220.39 [1]). The court asked defense counsel “[w]hat period of prosecution [sic]” had been negotiated, and counsel answered, “It was the minimum, I believe.” When the court asked “[w]hy would it be the minimum,” the prosecutor replied, “On my note it indicates that[,] for [defendant], the post-release supervision time would be two years post-release supervision.” Relying largely on the People’s apparent belief in the appropriateness of their proposed disposition, the court agreed to offer defendant a three-year prison term and a two-year period of postrelease supervision in exchange for his guilty plea.

In the course of the ensuing plea colloquy, the court told defendant about the sentence to be imposed, saying:

“As you came into court today, you were charged with the crime to which you pled guilty but I hear that there is a predicate felony statement, so you theoretically could have received up to 12 years, is it?
“I lost my sentence chart when we transferred courtrooms so I don’t know. I think it is up to 12 years.
“Let’s assume it is up to 12 years based on your prior criminal history.
“You’ve been given a chance to plead guilty and you are going to receive a three-year sentence with two years post-release supervision.
“Do you understand that?”

Defendant answered, “Yes.” The court immediately asked whether defendant “had a chance to speak with” and had, “in fact, spoken with [defense counsel] today and on other days” about his case, such that counsel had “explained to [defendant] various legal rights and [his] options with regard to this case.” Defendant responded in the affirmative.

Later in the plea proceeding, the court delivered the following warning to defendant:

“Listen carefully.
“Predicate felony conviction today.
“If there is a third felony conviction, in theory at least, that would be your third felony conviction and . . . three felony convictions in theory is a big deal problem for anybody in your position.
“Do you understand that?” (Emphasis added.)

Defendant indicated that he understood.

Next, the court informed defendant that, to receive a three-year prison term, he had to meet certain conditions during the period of his release prior to sentencing. Specifically, the court told defendant that he had to truthfully discuss his case with the Department of Probation, refrain from committing new crimes and return to court for sentencing. The court further stated:

“Pay attention. . . .
“If you comply with those three conditions ....
“then you are guaranteed the three years with the two years post-release supervision.
“If you violate any of those conditions, I’ll decide what’s the nature of the violation, whether it is true or not and if I decide that you violated one of the conditions, I don’t have to give you the three years with the two years. I might, but I don’t have to, and I could theoretically sentence you up to 12 years.
“If you violate any of three conditions and I decide that you did violate one of those conditions or all of them or some of them, you will not get your plea back, your plea will remain and I’ll do what I think is appropriate having decided the validity of the supposed violation.”

Defendant responded that he understood this explanation of the conditions of the plea and the consequences of failing to fulfill them.

The court proceeded to arraign defendant on a predicate felony statement which was filed by the People and alleged that he had a predicate felony conviction for attempted criminal possession of a weapon in the second degree. Defendant declined to challenge the validity of that predicate felony conviction, and he was adjudicated a second felony offender previously convicted of a violent felony. The court declared, “He’s a violent predicate which will put him in the range which will make the sentence that I promised a legal sentence.” The court ordered an adjournment of approximately two months for fulfillment of the plea conditions and sentencing.

Significantly, though, contrary to the court’s statement, while a three-year prison term is within the lawful sentencing range for a second felony drug offender convicted of third-degree criminal sale of a controlled substance (see Penal Law § 70.70 [3] [b] [i]), it was not a sentence lawfully available to defendant in light of his distinct predicate status. Rather, because defendant was a second felony drug offender previously convicted of a violent felony, he faced a statutory sentencing range of 6 to 15 years in prison on his third-degree drug sale conviction (see Penal Law § 70.70 [4] [b] [i]). But, the court was not informed of this issue and never indicated that it learned of the potential problem on its own.

Apparently, at some point after the plea proceeding, defendant was arrested for marijuana and trespass offenses. About three weeks after the entry of defendant’s plea, the court held a hearing pursuant to People v Outley (80 NY2d 702 [1993]) to determine whether defendant had violated the terms of his plea agreement. At the hearing, a police officer testified that the officer had arrested defendant upon seeing him smoking marijuana in the lobby of a public housing building. In response to that testimony, defendant presented a notarized letter from his aunt, who alleged that she was a resident of the building at issue and that defendant had been in her apartment at the time of the arrest. The court provided the defense with a short recess to enable the aunt to testify at the hearing, but at the end of the recess, defense counsel notified the court that the defense would rest without calling defendant’s aunt to the stand. After hearing the parties’ arguments, the court found that defendant had violated the terms of the plea by engaging in misconduct constituting criminal possession of marihuana in the fifth degree (see Penal Law § 221.10 [1]).

About a month later on the date of the scheduled sentencing proceeding, the parties appeared in court and discussed the People’s written submissions in support of enhancing defendant’s sentence. Defense counsel informed the court that he had not reviewed those submissions. The court said, “[0]bviously the sentence is going to be enhanced. I announced that the last time.” Nonetheless, the court adjourned the case so that the court and counsel could have more time to review the People’s arguments.

Two weeks later, the parties appeared before the court for sentencing. Early in the proceeding, the court reiterated that defendant had violated the terms of his plea deal, and the court noted that, based on the People’s written submissions, it appeared that defendant had tried to arrange for the presentation of false evidence of an alibi in connection with his postplea marijuana offense. After the prosecutor’s argument in favor of an enhanced sentence, the court told defendant and defense counsel that they could “say anything [they] wantfed] on the issue of the appropriate sentence within the range that the law allows, and the circumstances - Counsel interrupted and commenced his argument in opposition to the enhancement of defendant’s sentence, positing that the evidence at the Outley hearing had not revealed misconduct that warranted an enhanced sentence. Defendant declined to make any statement about the proposed sentence enhancement, and after a brief exchange between counsel and the prosecutor, the parties brought their arguments to a close.

The court again summarized the conditions of the plea and reiterated its prior finding that defendant had failed to abide by those conditions when he committed the marijuana offense. Noting that it was discussing an “enhanced sentence,” the court condemned defendant’s efforts to present a false alibi to cover up his violation of the plea conditions. The court stated, “So he’s sentenced to 6 years [in prison], which is an appropriate enhancement in view of all of the things that went on related to this case,” adding that defendant would also serve a two-year term of postrelease supervision. Counsel asked the court to “note [his] exception” without elaborating on the grounds for the objection, and the court so noted it. The court then repeated its pronouncement of the sentence and concluded the proceeding. Subsequently, defendant appealed.

A divided panel of the Appellate Division reversed the judgment, on the law, vacated defendant’s guilty plea and remanded the matter to Supreme Court for further proceedings (see People v Williams, 123 AD3d 240, 241-247 [1st Dept 2014]). The Court concluded that defendant’s claim fell within the exception to the preservation rule because Supreme Court’s alleged error in promising defendant an unlawful three-year prison term in exchange for his guilty plea constituted a due process violation which presented a question of law for appellate review despite the absence of proper preservation (see id. at 244, citing People v Louree, 8 NY3d 541, 545-546 [2007]). On the merits, the Court ruled that the lower court’s error affected the voluntariness of defendant’s plea, not simply his sentencing expectations, and that therefore vacatur of the plea was the only proper remedy (see id. at 245-247).

Two Justices dissented and voted to affirm (see id. at 247-250 [Tom, J.P., dissenting]). In the dissent’s view, defendant had to, and failed to, preserve his challenge to the legality of his guilty plea because the exception to the preservation rule does not apply where, as here, a defendant’s claim implicates only his or her sentencing expectations and not the voluntariness of the plea itself (see id. at 247-248). The dissent further opined that defendant’s claim lacked merit because the court’s imposition of a lawful six-year prison term within the range of punishments promised in the event that defendant violated the terms of the plea agreement met his legitimate sentencing expectations, notwithstanding that the court’s promise of a three-year prison term based on his potential compliance with those terms would have resulted in an illegal sentence for the offense to which he pleaded guilty (see id. at 248-250). One of the Appellate Division dissenters granted the People leave to appeal (2015 NY Slip Op 62556[U] [1st Dept 2015]), and we grounds. now reverse on preservation grounds.

II.

"Preservation — or, more precisely, the lack of preservation— frequently accounts for the disposition of criminal cases in this Court” (People v Hawkins, 11 NY3d 484, 491 [2008]), and we enforce the preservation doctrine with equal regularity in the trial and plea contexts, remaining mindful that the necessity of preservation is the rule rather than the exception (see e.g. People v Leach, 26 NY3d 1154, 1154 [2016]; People v Crowder, 24 NY3d 1134, 1136-1137 [2015]; People v Clemons, 49 NY2d 795, 796 [1980]; People v Pascale, 48 NY2d 997, 997-998 [1980]; People v Warren, 47 NY2d 740, 741 [1979]; People v Delaney, 48 NY2d 972, 973-974 [1979]; People v Adams, 46 NY2d 1047, 1047-1048 [1979]). Thus, we have held that, generally, “in order to preserve a challenge to the factual sufficiency of a plea al-locution there must have been a motion to withdraw the plea under CPL 220.60 (3)” (Lopez, 71 NY2d at 665; see Claudio, 64 NY2d at 858-859). And, “[u]nder certain circumstances, this preservation requirement extends to challenges to the volun-tariness of a guilty plea” (People v Peque, 22 NY3d 168, 182 [2013]; see People v Tyrell, 22 NY3d 359, 363-364 [2013]; People v Murray, 15 NY3d 725, 726 [2010]; People v Toxey, 86 NY2d 725, 726 [1995]; Delaney, 48 NY2d at 973-974). On the other hand, in People v Lopez (71 NY2d 662 [1988]), we concluded that, where a pleading defendant’s recitation of the facts of his or her offense clearly casts doubt on his or her guilt and the court makes no further inquiry, the defendant does not have to preserve a claim of fatal error in the allocution because, as noted above, “the court’s attention should have been instantly drawn to the problem, and the salutary purpose of the preservation rule is arguably not jeopardized” {id. at 666). In People v Louree (8 NY3d 541 [2007]), we adopted a variant of the Lopez exception applicable to the defendant’s claim that his plea was involuntary under People v Catu (4 NY3d 242 [2005]) based on the particular circumstances of the defendant’s plea and sentencing proceedings (see Louree, 8 NY3d at 546).

The Appellate Division in the instant case relied principally on Louree for its determination that defendant did not need to preserve his claim. In doing so, that Court viewed Louree as holding that a defendant never has to preserve a claim that the court violated due process by accepting a guilty plea without informing the defendant of the direct consequences of the plea (see Williams, 123 AD3d at 244 [“While such a challenge (to a plea) must ordinarily be preserved by a motion to withdraw the plea under CPL 220.60 (3), this does not apply where the trial court failed to fulfill its obligations to ensure that a plea conformed with due process”], citing Louree, 8 NY3d at 545-546; see also id. at 242 [“First, defendant’s constitutional claim that his plea violated due process because it was induced by an illegal promise need not be preserved”]). But, the Appellate Division misapprehended our decisions in Louree and subsequent cases, which clearly do not categorically exempt due process claims from the preservation rule in the plea context.

In that regard, in Louree, we excused defendant’s failure to preserve his Catu claim not because the claim implicated due process, but because the defendant had no practical ability to assert that the plea was invalid prior to the imposition of sentence. Specifically, while we stated that, “where a trial judge does not fulfill the obligation to advise a defendant of post-release supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a post-allocution motion,” we explained that we were applying an exception to the preservation rule because we could not “shut our eyes to the actual or practical unavailability of either a motion to withdraw the plea” or a CPL 440.10 motion, noting that “a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge” (8 NY3d at 545-546). We further observed that, “if the trial judge informs the defendant of postrelease supervision during the course of sentencing, as also happened here, a defendant may no longer move to withdraw the plea since a motion may only be made under CPL 220.60 (3) ‘[a]t any time before the imposition of sentence’ ” (id. at 546). Hence, our decision to relieve the defendant of any preservation obligation in Louree stemmed in significant part from the defendant’s inability to object to the legality of his plea prior to the final imposition of sentence, and not just from the nature of his due process claim. As a result, Louree does not support the Appellate Division’s apparent conclusion that, because defendant here attacked the volun-tariness of his plea on due process grounds, his claim was categorically exempt from the preservation rule.

Importantly, after Louree was handed down and prior to the Appellate Division’s decision here, we dispelled any notion that Louree establishes such a broad exception to the preservation rule. So it was that, in People v Peque (22 NY3d 168 [2013]), we reiterated the general rule that, even where the defendant challenges a plea on voluntariness and due process grounds, he or she must preserve that challenge via timely objection depending on the circumstances of the case, and we clarified that, “[t]aken together, Lopez and Louree establish that where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required” (id. at 182 [emphasis added]). In that very decision, we also concluded that a defendant could have preserved, and failed to preserve, his contention that the trial court’s failure to apprise him that deportation was a potential consequence of his plea rendered the plea involuntary (see id. at 183).

Thus, as Louree indicates and Peque crystallizes, if 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. Moreover, after the Appellate Division decided this case, we again emphasized that a defendant must object to the court’s failure to apprise him or her of the consequences of a guilty plea if he or she has the opportunity to lodge such an objection (see People v Crowder, 24 NY3d 1134, 1136-1137 [2015]; see also People v Conceicao, 26 NY3d 375, 381 [2015] [“If a defendant has an opportunity to seek relief from the sentencing court, he must preserve his challenge to the plea”]).

It is no wonder, then, that even defendant does not embrace the Appellate Division’s rationale for dispensing with the preservation requirement here, but merely argues that he is entitled to the benefit of the exception to the preservation rule based on the absence of a chance to raise his claim below. In that regard, defendant contends that Supreme Court violated due process and improperly induced his guilty plea because it failed to tell him at the plea proceeding that it could not legally order a three-year prison term, which the court promised him in exchange for his guilty plea and his compliance with the plea conditions, upon defendant’s conviction for third-degree drug sale in light of defendant’s status as a second felony drug offender with a prior violent felony conviction. By defendant’s reckoning, since the court never announced that the promised sentence was illegal and his lawyer did not display any recognition of the unlawfulness of the proposed sentence on the record, neither defendant nor counsel had any practical ability to challenge the voluntariness of the plea on grounds of which they were unaware.

However, even assuming that the error alleged by defendant impacts the voluntariness of the plea as opposed to his sentencing expectations — an issue hotly contested by the parties and unaddressed by our decision today — defendant could have raised his current claim prior to the final imposition of sentence in Supreme Court, and therefore, he was obligated to, and failed to, preserve his claim.

As our previous summary of the record shows, and contrary to the assertions of our dissenting colleagues (see dissenting op at 232), the defense had multiple opportunities to preserve defendant’s current challenge to his plea and seek clarification of the matter, as such opportunities arose from, inter alia: the court’s comment at the plea proceeding about its uncertainty of the legality of the promised sentencing options; the court’s statements at the plea proceeding about the determinative nature of defendant’s predicate felony offender status; the numerous adjournments, the Outley hearing and the post-hearing court appearance that transpired between the plea and sentencing proceedings, which could have allowed counsel and defendant to inquire further into the legality of the promised sentencing options and defendant’s understanding of the plea; and the court’s comments at sentencing, which offered an opening for counsel to confirm the legality of the court’s sentencing options and its effect on the validity of the plea. By failing to seize upon these opportunities to object or seek additional pertinent information, defense counsel failed to preserve defendant’s claim for appellate review (see generally Conceicao, 26 NY3d at 381; Crowder, 24 NY3d at 1136-1137; see People v Murray, 15 NY3d 725, 727 [2010] [where a practical ability to object to the validity of the plea arose at the sentencing proceeding, defendant’s failure to object or move to withdraw the plea rendered his claim unpreserved]; cf. Conceicao, 26 NY3d at 383-384 [observing that, although defendants did not have to preserve claims for plea vacatur due to lack of information and circumstances supplying a practical ability to object, adjournments in the proceedings and further pre-sentence litigation strengthened attorneys’ and defendants’ comprehension of the consequences of the pleas]).

Similarly, to the extent defendant suggests that the court also improperly made him a firm promise of a three-year prison term even if he committed a new crime, he could just as easily have preserved that claim as well. At the court appearance following the Outley hearing, the court announced its intention to enhance the sentence beyond the promised three-year prison term based on defendant’s commission of a new marijuana offense. Later, at sentencing, the court again referenced its plan to increase the sentence, and prior to the end of the proceeding, it proposed to increase the sentence to a six-year prison term. In response, defendant and his attorney could have objected to the court’s plan to dishonor the purported promise of a three-year prison term in connection with defendant’s violation of the plea conditions if such a promise, or the legal viability of it, had motivated defendant to plead guilty. Since the defense did not inquire into the legality of a three-year prison term in the event of a violation of the plea terms or demand that the court honor the alleged promise, defendant failed to preserve any complaint about the court’s enhancement of the sentence and advisements regarding what would occur in the event of a violation.

Finally, given defendant’s failure to preserve his present claim that his plea must be vacated, we express no opinion on the merits of the claim, and we remit the case to the Appellate Division, which may decide whether to review defendant’s un-preserved challenge to the validity of his plea as a matter of discretion in the interest of justice. As a result, just as our decision on procedural grounds should not be read to suggest that defendant would have been entitled to vacatur of his plea had he preserved his current claim, it also should not be taken as an endorsement of Supreme Court’s handling of the proceedings below, which all parties agree was far from ideal irrespective of the ultimate validity of the plea.

III.

Because defendant, via counsel, could have raised his current challenge to the propriety of his guilty plea prior to the imposition of sentence, he was obligated to preserve his claim, and his failure to object to the plea in the court of first instance precludes our review of his present contention. Accordingly, the order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts and issues raised but not determined on the appeal to that Court.

Rivera, J.

(dissenting). On this appeal, we are presented with a bargained-for plea based on an illegal minimum incar-ceratory sentence, offered as an inducement for defendant’s waiver of his constitutionally protected right to liberty and the guarantees afforded by his right to trial. In violation of defendant’s due process rights, the Judge at the plea hearing failed to ensure the defendant understood the direct sentencing consequences of the plea, and wrongly informed defendant that the offer was a legal minimum rather than one precluded by law. Thus, since defendant’s plea was not knowing, voluntary and intelligent, the plea must be vacated. No less important to my determination that this plea cannot stand is the indisputable fact that the judicial practice employed in defendant’s case jeopardizes the public confidence in plea bargaining and the criminal justice system as a whole.

Unlike the majority, I conclude that we are not procedurally foreclosed from addressing the merits of defendant’s claims on direct appeal. Quite simply, the usual rules of preservation do not govern our review because this is far from the usual case. According to the record, the Judge represented to defendant that under the law, in exchange for pleading guilty, he could receive a sentence of three years’ incarceration, followed by two years of postrelease supervision. The Judge failed to independently confirm whether the sentence promise was in fact legal, and instead deferred that determination to “the learned folks in the prosecution’s office.” However, the Judge’s reliance on the work of others was misplaced because the information available to the court at the plea established that the only lawful minimum incarceratory time applicable to defendant was six years — a fact the Judge failed to discuss with defendant before he entered his plea. Six years’ imprisonment is coincidentally also the sentence imposed by the Judge after he determined that defendant’s sentence should be enhanced for violation of a plea condition, namely defendant’s possession of marijuana in the lobby of a residential building, conduct for which defendant was never criminally charged.

I.

Under our laws, the judge is responsible for accepting a plea after ensuring its validity, and the judge is the sole person authorized to impose a sentence. It is the “trial court [which] 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 Louree, 8 NY3d 541, 544 [2007] [emphasis omitted], quoting People v Ford, 86 NY2d 397, 402-403 [1995]).

Thus, the trial judge must ensure “that the record . . . [is] clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant” (People v Belliard, 20 NY3d 381, 385 [2013] [internal quotation marks and citations omitted]). In addition, the “[s]entence is primarily a judicial responsibility” and so the “|j]udge may not ignore those provisions of law designed to assure that an appropriate sentence is imposed” (People v Selikoff, 35 NY2d 227, 238, 240-241 [1974], cert denied 419 US 1122 [1975]; see also CPL 380.20 [“The court must pronounce sentence in every case where a conviction is entered”]; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358, 362 [2008] [“the sentencing judge — and only the sentencing judge — is authorized to pronounce the PRS component of a defendant’s sentence”], superceded by statute People ex rel. Joseph II. v Superintendent of Southport Correctional Facility, 15 NY3d 126 [2010]).

When a plea fails to comply with the due process requirement that the plea represent a “voluntary [,] [knowing] and intelligent choice among the alternative courses of action” (People v Catu, 4 NY3d 242, 245 [2005], quoting Ford, 86 NY2d at 403), the plea must be vacated (People v Hill, 9 NY3d 189, 193 [2007]; Catu, 4 NY3d at 244). Where, as here, the plea is based on an illegal minimum period of incarceration, the plea is defective at its inception, because defendant cannot have made a knowing, voluntary and intelligent decision to plead when he did not have knowledge that his bargained-for sentence was half the legal minimum (see Catu, 4 NY3d at 245 [failure of the court to advise defendant of postrelease supervision required reversal of the conviction]). Moreover, the requirements of due process refer not to illusory plea offers, but to plea offers that can in fact, and under law, be fulfilled (see Selikoff, 35 NY2d at 241). “Thus, any sentence ‘promise’ at the time of plea is, as a matter of law and strong public policy, conditioned upon its being lawful and appropriate” (id. at 238). Therefore, a court must also ensure that a defendant’s bargained-for benefit is a lawful promise. When a court fails to do so, and treats as wholly valid a plea that is constitutionally defective, a defendant may seek to be relieved from the plea bargain by vacating the plea (People v Cameron, 83 NY2d 838, 839-840 [1994]).

Furthermore, both the United States Supreme Court and this Court have determined that “a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” (Selikoff, 35 NY2d at 241, citing Santobello v New York, 404 US 257, 260 [1971]). In the case of an illegal sentencing promise, the judge’s only option is to vacate the plea because specific performance of the agreed upon minimum prison term is unavailable. However, the judge here failed to follow any lawful course to remedy the due process violation inherent in the plea, and instead imposed a sentence that was double the minimum offered to defendant. Defendant’s plea must therefore be vacated.

The People contend that defendant’s plea was knowing and voluntary because defendant understood that if he breached the plea conditions imposed by the court he faced a maximum sentence of 12 years’ imprisonment, and the court met defendant’s legitimate sentencing expectations by imposing a six-year prison term. The sentence imposed is irrevelant to the matter at hand because “[the] defect lies in the plea itself and not in the resulting sentence” (Hill, 9 NY3d at 191); as a consequence “the court [ ] violated the defendant’s due process rights — not the defendant’s sentencing expectations” (id. at 193).

In any event, the People’s argument is based on their misreading of the plea proceeding record. As that record establishes, the Judge never retreated from three years as the baseline for defendant’s minimum sentence, and on several occasions expressly measured defendant’s sentence against that three-year floor. For example, in describing the beneficial sentence defendant would receive in exchange for his guilty plea, the Judge told defendant that under the high-end of the sentencing spectrum he could have imposed up to 12 years’ imprisonment — which as it turned out was incorrect — and reminded defendant that “[y]ou’ve been given a chance to plead guilty and you are going to receive a three-year sentence with two years post-release supervision.” When discussing the plea conditions, the Judge said that if defendant complied he was "guaranteed the three years with the two years post-release supervision,” and if he did not comply, he was still eligible to receive the three-year term. Thus, the Judge continued to hold out three years as the minimum from which any sentence would be determined. Of course, the Judge could not sentence defendant to a legal term of three years, and thus even under the People’s analysis, defendant’s reliance on that minimum rendered his plea involuntary.

The People further argue that a sentencing court has the inherent power to correct an illegal sentence (People v Williams, 87 NY2d 1014, 1015 [1996]). True enough, but a court could not have corrected the sentence to coincide with the plea offer. Put another way, defendant could not be legally sentenced to three years’ imprisonment for the crime to which he pleaded guilty.

Nevertheless, the People contend that under People v Collier if the original promise could not be imposed, the sentencing court could impose another lawful sentence as long as it “comports with the defendant’s legitimate expectations” (22 NY3d 429, 434 [2013]). According to the People, under that principle, because defendant received the legal statutory minimum of six years, the ultimate sentence imposed fulfilled his expectations of a “minimum” sentence. The People apparently ignore that the original sentencing offer was a minimum of three years, not six, and that three years was the number of consequence to defendant. As this Court has recognized, “the overwhelming consideration for the defendant is whether he [or she] will be imprisoned and for how long” (People v Gravino, 14 NY3d 546, 559 [2010]).

The People further claim that if defendant had complied with the plea conditions he could have received a three-year sentence by repleading to a lesser offense. Yet for defendant to plead down, the original plea must be vacated — exactly the relief the People oppose and which defendant seeks on this appeal.

To the extent the People argue that defendant could be subjected to a legal sentence greater than the three years’ imprisonment he was promised, we have never held that a court may impose a sentence that exceeds the minimum period expressly offered as an inducement for a guilty plea, and our case law supports the opposite conclusion. Cases where a sentencing court “fixed” an illegal sentence through imposition of a lawful sentence are distinguishable because none of them dealt with an increase in the minimum amount of time defendant could expect. In Collier,' defendant, as part of his plea bargain, pleaded guilty to two counts of robbery and received a sentence of 25 years in prison on the first count, and five years on the other count — to run either consecutively or concurrently based on the Judge’s discretion (22 NY3d at 431). The Judge imposed the sentences consecutively and defendant appealed, arguing both that the sentence was excessive and that the five-year sentence was illegal {id. at 432). The Appellate Division agreed that the five-year sentence was illegal, vacated the sentence, and remitted the matter for resentencing (id.). Defendant was resentenced to concurrent terms of 25 years and 10 years (id.). Defendant appealed, arguing that his plea had to be vacated because his expectation when pleading guilty on the first plea had been five years (id.). However, our Court upheld defendant’s sentence of 25 years because it fit within defendant’s original expectation of a sentence from 25 years’ to 30 years’ imprisonment (id. at 433-434).

In Williams, this Court rejected a defendant’s challenge to a resentence that imposed an enhanced maximum period of incarceration directly within the period expressly explained to defendant at the time of the plea (87 NY2d at 1015). As the facts of that case establish, defendant was originally sentenced to an illegal indeterminate prison term of 3V2 to 7 years, and thereafter resentenced to a lawful term of 3V2 to IOV2 years’ imprisonment. The Court concluded that defendant did not have a legitimate expectation of finality in the prior illegal sentence because the Judge had informed defendant in advance that he was pleading to a crime that, by law, allowed the Judge "to impose a sentence of up to 15 years” (id.). As relevant to the instant appeal, the defendant’s minimum of 3V2 years’ imprisonment went unchanged from the illegal sentence to the resentence. Thus, this Court properly focused on the defendant’s maximum sentencing exposure.

Similarly, the Court held in People v Murray that a judge does not “arbitrarily trifle [ ] with the legitimate expectations of [a] defendant based on the plea” when the defendant is told that the plea is conditional, and advised of the sentence to be imposed should defendant violate the court’s terms (15 NY3d 725, 726 [2010]). In Murray, the Judge informed the defendant that he would “probably” receive youthful offender status and a nine-month sentence if he complied with certain plea conditions set by the court. Otherwise, the court would sentence the defendant as an adult (id.). When the defendant failed to comply, the court imposed an adult sentence, which this Court upheld on appeal as “rooted in the terms of defendant’s plea and evident to all concerned” (id.). The court in Murray had expressly stated that the consequence of a violation of the plea condition was imposition of a sentence wholly unlike the sentence available to a youthful offender. In contrast, the Judge in defendant’s case always indicated that the sentence was based on a three-year minimum imprisonment term.

The decisions in Collier, Williams and Murray presuppose that a defendant who pleads guilty while fully aware of the period of incarceration attached to the plea is making a choice to bargain away freedom for at least the minimum, and up to the maximum, as described by the court. In accordance with this guiding principle, defendant’s plea must be vacated because it was based on a three-year illegal minimum sentence, which the court communicated as the lowest end of the applicable sentencing range.

II.

When a judge fails “to ensure that defendant understands the nature of the charge and that the plea is intelligently entered” (People v Lopez, 71 NY2d 662, 666 [1988]), as a matter of due process and fundamental fairness, it is unreasonable to demand preservation by objection. It is particularly unjust to require preservation in a case such as the one before us, where the error escaped discovery of all those involved and trained in the law — the judge, prosecutor and defense counsel.

Moreover, the preservation rule imposed by the majority is not unqualifiedly required by our case law under the circumstances presented in this appeal. Preservation serves important purposes. It allows a claim to be brought to the trial court’s attention in order to “provide the opportunity for cure before a verdict is reached and a cure is no longer possible,” “advance [ ] the truth-seeking purpose of the trial” and ensure “the goal of swift and final determinations of the guilt or nonguilt of a defendant” (People v Gray, 86 NY2d 10, 20-21 [1995]). However, we have recognized that rules of preservation must give way under circumstances where “the salutary purpose of the preservation rule is arguably not jeopardized” (People v Lopez, 71 NY2d 662, 666 [1988]). Exceptions to preservation are narrow, but not so restrictive as to be meaningless.

Thus, the Court recognized in Lopez that preservation is not required in the “rare case” where the voluntariness of the plea is called into question by a defendant’s factual recitation negating an essential element of the crime, and the court fails to adequately undertake its duty-bound inquiry to ensure the defendant understands the charge and plea (see id.). In such a case “the court’s attention should have been instantly drawn to the problem” (id.). In Louree, the Court employed a pragmatic approach to preservation, and reviewed on direct appeal a Catu violation, because the Court recognized “the actual or practical unavailability” of a motion to challenge a plea which cannot be “knowing, voluntary and intelligent if a defendant is ignorant of a direct consequence because of a deficiently conducted al-locution” (Louree, 8 NY3d at 545-546).

Defendant’s case for direct appellate review to our Court, notwithstanding the lack of a postallocution motion, is at least as, if not more, compelling as these cases. For example, in Lopez, the Court made clear that preservation is not required when a judge fails, in accordance with a judge’s constitutional duty, to make an additional inquiry once the voluntariness of the plea is placed in question during the allocution (71 NY2d at 666). In defendant’s case the illegality of the sentence offer was similarly evident from the record. Yet, the Judge proceeded to inform defendant that the offer was a legal minimum term of incarceration, without first having confirmed the statutory sentencing range. Thus, the Judge failed to take appropriate steps to ensure that defendant understood the nature of the sentencing offer.

As for the exception recognized in Louree, here defendant had no genuine reasonable opportunity to present the Judge with a counterview of the inherently defective plea offer. In Louree, the lack of opportunity was due to the timing of the error. The trial judge did not mention postrelease supervision at the allocution, depriving the defendant of information necessary to determine whether to move to withdraw his plea. Nevertheless, this Court did not require that defendant investigate whether the Judge’s description of the sentence was correct. When the trial judge informed the defendant at sentencing about postrelease supervision, it was too late because a motion to withdraw a plea may only be made under CPL 220.60 (3) before the imposition of sentence (Louree, 8 NY3d at 546).

Here, once the Judge stated at the plea hearing that the minimum was lawful, defendant relied on that statement and had no reason for further inquiry into the legality of the plea offer. Like the defendant in Louree, defendant Williams based his decision to plead guilty on the Judge’s error, and should be viewed as similarly lacking the opportunity to move to withdraw. Moreover, application of the preservation requirement here presupposes defendant’s prior awareness of the very error that the Judge was required to present to the defendant (see People v Peque, 22 NY3d 168, 216 [2013, Lippman, Ch. J., dissenting] [“A preservation requirement presumes knowledge that would make the advisement unnecessary — a classic ‘Catch-22’ ”]). However, “[i]f the prosecutor, defense counsel and the court all suffered from the same misunderstanding” about the plea offer, “it would be unreasonable to conclude that defendant understood it” (People v Worden, 22 NY3d 982, 985 [2013]).

The circumstances of this case further illustrate the inapplicability of preservation to defendant’s claim. The nature of postallocution motion practice presumes that a defense attorney has a reason to question the validity of the plea process and the offer. This makes sense in the context of a plea allocution, which involves a defendant’s responses to questions from the judge, intended to identify a defendant’s lack of understanding and volition, and where defense counsel, acting on behalf of the defendant, has reason to ensure the allocution meets constitutional requirements (see People v Tyrell, 22 NY3d 359, 366 [2013] [plea was defective where “the records do not affirmatively demonstrate” that defendant understood the waiver and “there is a complete absence of discussion” by the court, defense counsel or defendant of the pertinent constitutional rights]; Lopez, 71 NY2d at 667 [trial court conducted a proper inquiry into defendant’s allocution to ensure the factual sufficiency of defendant’s factual recitation]; People v Harris, 61 NY2d 9, 17 [1983] [“a record that is silent will not overcome the presumption against waiver”]). However, in the case before us, defense counsel negotiated the plea with the prosecutor and the court accepted the offer as lawful. As a consequence defendant had no reason to question the legality of its terms.

Application of the preservation rule to these facts absolves the court of its constitutional duty to ensure that defendant is informed of the direct consequences of his plea, and limits defendant’s remedial options. The majority states the defendant can request the Appellate Division exercise its interest of justice authority to grant him relief (majority op at 224), but there are no assurances that the Court will be disposed in defendant’s favor. Here, two Justices dissented, finding the plea comports with constitutional requirements. Alternatively, the majority states defendant can proceed with an ineffective assistance of counsel claim. However, as with a Catu violation, the error here is apparent on the record and therefore an article 440 motion is improper (see CPL 440.10 [2] [b], [c]; People v Cooks, 67 NY2d 100, 104 [1986] [“When . . . sufficient facts appear on the record to permit the question to be reviewed, sufficiency of the plea allocution can be reviewed only by direct appeal. Only in the unusual situation that sufficient facts with respect to the issue do not appear on the record is a CPL 440.10 motion to vacate available as a means of review” (citation omitted)]). All the while, defendant has served more than the three-year minimum he was promised.

It seems apparent that the salutary purpose of the preservation rule is not furthered by refusing to consider defendant’s claim on direct review to this Court {Lopez, 71 NY2d at 666). Therefore, defendant should be permitted to pursue his challenge to the validity of the plea by direct appeal to us.

III.

Defendant’s case is yet another reminder that our criminal justice system depends on the proper administration of plea bargains (Santobello, 404 US at 260-262 [“ ‘plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged”]). As the United States Supreme Court has recognized, “ours is for the most part a system of pleas, not a system of trials” (Missouri v Frye, 566 US —, —, 132 S Ct 1399, 1407 [2012] [internal quotation marks and citations omitted]). “In today’s criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant” (566 US at —, 132 S Ct at 1407). “[P]lea negotiation serves the ends of justice” (Selikoff, 35 NY2d at 233). More specifically, the final product of negotiation, the bargained-for promise, ensures the “prompt and largely final disposition of most criminal cases”; avoids the “corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial”; “protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release”; and “by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned” (Santobello, 404 US at 261).

The legitimacy of our “bargain-for-sentence” criminal process is based on the assurance that where promises are made to induce a defendant’s guilty plea, they are capable of being enforced (see id. at 262 [“when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled”]). Without such assurances defendants would be loathe to engage in a risky high-stakes negotiation involving trading personal liberty interests in exchange for no benefit at all. Thus, a criminal justice system that tolerates unenforceable bargains increases the potential “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” (People v Danny G., 61 NY2d 169, 176 [1984], quoting People v McConnell, 49 NY2d 340, 349 [1980]). Similarly, because illegal sentencing promises can bear no assurance of enforcement, they undermine public confidence in plea bargains, and discourage defendants from entering these agreements. It is therefore crucial that “the court in overseeing and supervising the delicate balancing of public and private interests in the process of plea bargaining” (Selikoff, 35 NY2d at 243) conduct its constitutional duty to ensure the lawfulness of promises leading to a defendant’s incarceration. The Judge here failed to fulfill his duty, and the sole remedy for the defect presented on this record is to vacate the plea.

Chief Judge DiFiore and Judges Pigott, Stein and Garcia concur; Judge Rivera dissents and votes to affirm in an opinion in which Judge Fahey concurs.

Order reversed and case remitted to the Appellate Division, First Department, for consideration of the facts and issues raised but not determined on the appeal to that Court.

      . Notably, if, as the People maintain, defendant’s claim raises an issue pertaining to his sentencing expectations and not the voluntariness of his plea, it is undisputed that such a claim would have to be preserved to at least the same extent as a challenge that genuinely relates to the voluntariness of the plea.

      . Our dissenting colleagues contend that “ [i] t is particularly unjust to require preservation in a case such as the one before us, where the error escaped discovery of all those involved and trained in the law — -the judge, prosecutor and defense counsel” (dissenting op at 231). This comment appears to be a mere rephrasing of the dissent’s argument that defendant lacked a practical opportunity to raise his current claim before the court of first instance. We simply disagree because the record discloses several instances where, in light of the court’s comments and the course of the proceedings, the defense could have made an objection based on, or sought clarification of, the legality of a three-year prison term upon his conviction. If the dissent means to suggest that defendant did not have to preserve his claim, regardless of any opportunity to do so, because the record does not affirmatively reveal that he and his attorney had actual knowledge that the court committed an alleged error, such an assertion is untenable. Although we have excused the failure to use the objection method of preservation to preserve a claim of a fundamental defect in a plea based in part on the lack of an opportunity for the defendant to have discovered the error, we have never held, either in the plea context or elsewhere, that the defendant’s lack of actual knowledge that an error has occurred, despite an opportunity to learn of the error, may excuse the defendant from having to preserve his or her claim via objection. Indeed, such a theory would swallow the preservation doctrine whole, thereby eviscerating an essential limit on our jurisdiction (see People v Turriago, 90 NY2d 77, 80 [1997]; People v Kelly, 5 NY3d 116, 119 [2005]), because virtually every defendant could rely on a record silent on the subject of the defendant’s actual knowledge to argue that he or she did not in fact comprehend the erroneous nature of the court’s actions and therefore had no obligation to object. We reject this sweeping knowledge-based exception to the preservation rule.

      . Notably, the legislature is aware that illegal sentences may sometimes be imposed and has created a mechanism to address this problem. That mechanism, CPL 440.40, authorizes the court, upon the People’s motion, to vacate an illegal sentence within one year of imposition. Had defendant received the illegal sentence that was to his benefit on his third-degree drug sale conviction, the People would have had only one year to move to vacate the illegal sentence (see Matter of Campbell v Pesce, 60 NY2d 165, 168-169 [19831).

      . The correct sentence was a determinate term between 6 and 15 years, followed by a term of postrelease supervision between IV2 and 3 years (see Penal Law § 70.70 [4] [b] [i]).

      . It is worth noting that defendant was sentenced in January of 2012. If he had repleaded at that point to the originally agreed on three-year sentence, his sentence would already be complete.

      . The Court’s holding in People v DeValle (94 NY2d 870 [2000]) is not to the contrary. In that case, the Court held that the trial court had inherent power to correct an illegal sentence where defendant did not seek withdrawal of the plea, and also failed to establish detrimental reliance on the illegal sentence that could not be addressed by returning him to his preplea status, if he so desired. Here, defendant seeks the remedy the Court in DeValle recognized as appropriately available to the defendant on the facts of that case. Thus, unlike the defendant in DeValle who, in essence, demanded specific performance of an illegal sentence, defendant here seeks no more than what the law allows, namely to be returned to his preplea status.

      . The majority is incorrect in its assertion that allowing defendant to bring a direct claim would “swallow the preservation doctrine whole” (majority op at 224 n 2). Here, defendant should be absolved from the normal preservation rules, not solely because he lacked actual knowledge of the error, as the majority asserts, but because he relied on an assertion of the trial judge that the plea offer was based on a legal minimum sentence. When a court’s statement creates the perception that no further investigation óf a sentence is needed, defendant cannot be held responsible for relying on that statement.