“The Harrigan Safeguard” – Mandatory Opportunity to Withdraw a Plea When the Promised Sentence Proves Illegal

Introduction

Citation: People v. Harrigan, 2025 NY Slip Op 03669 (App. Div., 3d Dep’t, June 18 2025)

Nicole Harrigan, together with three co-defendants, orchestrated a July 2021 kidnapping that culminated in murder, believing the victim had acted as a police informant. An indictment charged her with three counts of conspiracy in the second degree (Penal Law §105.15) and criminal possession of stolen property in the third degree. After negotiations, she pleaded guilty to one count of conspiracy in the second degree, expressly waived most appellate rights, and accepted a promised determinate sentence of 10 years’ imprisonment plus five years’ post-release supervision.

Post-conviction, the Department of Corrections and Community Supervision (DOCCS) discovered that a determinate sentence is not authorized for conspiracy in the second degree; Penal Law §70.06 mandates an indeterminate sentence of 4½–12½ to 9–25 years for a second felony offender. The trial court resentenced Harrigan, by purported consent, to 8–16 years. On appeal she asserted, among other things, that the court failed to give her a genuine choice: withdraw her plea or receive a legal sentence consonant with her expectations.

The Third Department agreed in part—holding the appeal waiver valid, yet vacating the sentence and remanding. The Court crystallized a procedural rule that when a promised sentence is later determined to be unlawful, the defendant must be explicitly afforded the option either (1) to withdraw the plea or (2) to receive a sentence that honors the bargain by lawful means. Passive consent to a harsher, lawful sentence is insufficient.

Summary of the Judgment

Appeal Waiver: Confirmed as knowing, voluntary, and intelligent; most challenges barred.
Plea Validity Claims: Unpreserved; post-plea minimization statements did not trigger the “narrow exception” for further inquiry.
Illegal Sentence: Determinate 10-year term was unauthorized. When DOCCS alerted the court, the defendant was resentenced to 8–16 years without an express withdrawal option.
Holding: Resentence vacated. On remand County Court must (a) give defendant the opportunity to withdraw her plea, or (b) craft a lawful sentence that satisfies the original 10-year expectation (e.g., by reducing the conviction or sentence, consistent with People v. Collier and People v. Jabot).
Other Claims: Ineffective assistance and related issues either barred, unpreserved, or relegated to CPL §440 review.

Analysis

Precedents Cited and Their Influence

People v. Lopez, 6 NY3d 248 (2006) – Sets the benchmark for a valid appeal waiver. The Third Department applied Lopez to find Harrigan’s waiver separate and distinct from trial rights after clarifying overbroad language.
People v. Thomas, 34 NY3d 545 (2019) – Emphasizes that defendants must understand some appellate rights survive the waiver. The court relied on Thomas to uphold Harrigan’s waiver.
People v. Williams, 22 NY3d 212 (2016) & 87 NY2d 1014 (1996) – Distinguishes between plea validity and illegal sentences; recognizes a trial court’s inherent power to correct an illegal sentence. These cases frame the legality issue.
People v. Collier, 22 NY3d 429 (2013) – Core authority: if the original sentence is illegal, the court must offer withdrawal or a remedy that preserves the plea bargain.
People v. Jabot, 156 AD3d 954 (3d Dep’t 2017) – Describes permissible remedies (e.g., reducing the conviction) to honor the bargain.
People v. Sims, 207 AD3d 882 (3d Dep’t 2022), aff’d 41 NY3d 995 (2024) – States unsworn statements to Probation do not, without more, obligate further inquiry into plea voluntariness.

The Third Department synthesized these precedents to craft a clear procedural message: when an illegal sentence surfaces, passive “consent” to a harsher lawful sentence is not enough. The defendant must be affirmatively given a meaningful choice.

Legal Reasoning

1. Jurisdiction to Correct the Sentence. Penal Law §§70.00, 70.06 establish permissible ranges. Conspiracy in the second degree is a class B felony requiring an indeterminate sentence; a determinate sentence, though promised, was void. Trial courts possess inherent power to rectify an unlawful sentence, but exercise of that power must respect due-process interests surrounding the plea.

2. Plea-Induced Expectations. The majority anchored its reasoning in contract-like principles: a plea is a bargain. Where the People receive the plea’s benefits (conviction without trial) the defendant must receive the benefit of her bargain (the sentencing promise) or else get her consideration back (plea withdrawal).

3. Formality of the Withdrawal Option. The court drew a bright procedural line: the defendant’s sentencing expectations are protected unless she makes an informed, on-the-record decision to relinquish them. Merely asking whether she “consents” to a longer sentence, without first offering withdrawal, does not satisfy Collier.

4. Appeal-Waiver Doctrine. A valid appeal waiver removes most claims from appellate review, but challenges to the voluntariness of the plea – especially where the plea’s inducement is compromised by an illegal sentence – survive. Thus, the court reached the sentencing issue even though the waiver was upheld.

Impact on Future Cases

Plea Negotiations. Prosecutors and defense counsel must double-check statutory sentencing schemes—especially when dealing with conspiracy offenses or second-felony status—lest they craft illegal promises that unravel the plea.
Resentencing Protocol. Trial courts statewide must place on the record an explicit Harrigan Safeguard: “Do you wish to withdraw your plea? If not, here is the lawful sentence or an alternative reduction that keeps your sentencing expectation intact.” Failure invites reversal.
Administrative Scrutiny. DOCCS notifications of illegality will trigger a predictable procedural response, reducing uncertainty for all actors.
Appeal Waivers. The decision reaffirms that waivers remain enforceable if carefully explained and limited, yet they do not bar challenges to sentencing promises gone awry.
Conspiracy Sentencing Awareness. Harrigan spotlights a technical but common mistake—confusing determinate and indeterminate sentencing frameworks for inchoate offenses. Expect training seminars and bench cards correcting the misunderstanding.

Complex Concepts Simplified

Appeal Waiver: A clause in many plea bargains where defendants give up most—but not all—rights to appeal. It cannot block challenges to the plea’s voluntariness or the legality of the sentence.
Indeterminate vs. Determinate Sentence: Indeterminate: A range (“8 to 16 years”), with parole eligibility after the minimum. Determinate: A fixed term (“10 years”) followed by post-release supervision. The Penal Law specifies which crimes allow which type.
Second Felony Offender: A person previously convicted of a felony; sentencing ranges become harsher, and the minimum is half the maximum on an indeterminate term (Penal Law §70.06).
Narrow Exception to Preservation Rule: Ordinarily, a defendant must move to withdraw a plea to preserve objections. However, if the plea allocution itself casts doubt on guilt or voluntariness, the appellate court may review without a motion. Unsworn post-plea comments generally do not trigger the exception.
CPL Article 440 Motion: Post-conviction collateral attack on matters outside the record—e.g., claims about off-the-record attorney advice.

Conclusion

People v. Harrigan does not merely correct a sentencing slip; it crystallizes a defendant-protective protocol for when illegal sentences surface. The “Harrigan Safeguard” requires courts to affirmatively offer plea withdrawal or a lawful equivalent of the promised sentence. In doing so, the Third Department reinforces fundamental fairness in plea bargaining, clarifies the limits of appeal waivers, and reminds practitioners that statutory sentencing schemes are non-negotiable. Going forward, every plea that rests on a sentencing promise will be measured against Harrigan’s insistence that the bargain be honored—or freely undone—when the law intercedes.