| People v Rivera |
| 2008 NY Slip Op 04569 [51 AD3d 1267] |
| May 22, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Carlos Rivera,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Mercure, J.P. Appeals (1) from a judgment of the County Court of Ulster County (Czajka,J.), rendered August 19, 2005, convicting defendant upon his plea of guilty of the crimes ofassault in the second degree and criminal possession of a weapon in the third degree, and (2)from a judgment of said court, rendered February 10, 2006, which resentenced defendantfollowing his conviction of the crime of criminal possession of a weapon in the third degree.
While the jury was deliberating at his trial, defendant pleaded guilty to the indictment, whichcharged him with assault in the second degree and criminal possession of a weapon in the thirddegree. The charges arose from an altercation in a bar in the Town of New Paltz, Ulster County,during which defendant stabbed the victim with a pocket knife. Defendant was ultimatelysentenced as a second felony offender to three years in prison to be followed by three years ofpostrelease supervision on the conviction of assault in the second degree, and a concurrent termof 2 to 4 years in prison on the conviction of criminal possession of a weapon in the third degree.Defendant now appeals, seeking vacatur of his plea. Inasmuch as there is no dispute in the briefsthat defendant was not advised of the duration of the mandatory period of postrelease supervisionprior to sentencing, we agree that vacatur is required and, therefore, now reverse.
It is well settled that while " '[t]he court is not required to engage in any particular litany[*2]when allocuting the defendant, . . . due processrequires that the record must be clear that the plea represents a voluntary and intelligent choiceamong alternative courses of action open to the defendant' " (People v Louree, 8 NY3d 541, 544-545 [2007] [citation omitted]).Thus, "a defendant pleading guilty to a determinate sentence must be aware of the postreleasesupervision component of that sentence in order to knowingly, voluntarily and intelligentlychoose among alternative courses of action, [and] the failure of a court to advise of postreleasesupervision requires reversal of the conviction" (People v Catu, 4 NY3d 242, 245 [2005]; accord People v Hill, 9 NY3d 189,191 [2007], cert denied 553 US —, 128 S Ct 2430 [2008]; People vLouree, 8 NY3d at 545; People vVan Deusen, 7 NY3d 744, 745-746 [2006]). Furthermore, reversal is required regardlessof whether a defendant's sentence, including postrelease supervision, is less than the totalpotential period of incarceration to which defendant agreed; "it [is] 'irrelevant that the prisonsentence added to postrelease supervision is within the range of prison time promised at theallocution.' Harmless error doctrine is inapposite when analyzing remedies for Catuerrors" (People v Hill, 9 NY3d at 192 [citations omitted]).
Moreover, although the various Departments of the Appellate Division had generally heldthat the preservation requirement applies to Catu errors (see e.g. People v Yanas, 36 AD3d1149, 1150 [2007] [and cases cited therein]), the Court of Appeals has now established that"where a trial judge does not fulfill the obligation to advise a defendant of postreleasesupervision during the plea allocution, the defendant may challenge the plea as not knowing,voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocutionmotion" (People v Louree, 8 NY3d at 545-546).[FN1] More specifically, the Court concluded that when a defendant is not informed of postreleasesupervision until sentencing, a postallocution motion is not required because "a defendant canhardly be expected to move to withdraw his plea on a ground of which he has no knowledge"(id. at 546). Hence, the Court deemed Catu errors to be similar to the rare cases inwhich "a defendant's factual recitation negates an essential element of the crime pleadedto"—evincing that the plea is not intelligently entered—"and the trial court fails inits duty to make further inquiry and instead accepts the plea" (id. at 545; see People vLopez, 71 NY2d 662, 666 [1988]). In so holding, the Court expressly relied upon "the actualor practical unavailability" of the postallocution procedural devices when a defendant is not madeaware of postrelease supervision until sentencing (People v Louree, 8 NY3d at 546), i.e.,a motion to withdraw a plea may be made only "before the imposition of sentence" (CPL 220.60[3]) and CPL article 440 motions are not available because any omission would be clear from theface of the record (see CPL 440.10 [2]; People v Louree, 8 NY3d at 546).
Here, the record reveals that defense counsel acknowledged, in an affirmation supporting aCPL 220.60 motion made several months prior to sentencing, that defendant "entered a plea ofguilty to the [i]ndictment in exchange for a recommendation of the minimum sentence. . . followed by a period of post release supervision." We note that defendantaverred that he had "reviewed . . . and agree[d] with everything stated in the[a]ffirmation of" counsel. We need not decide, however, whether this evidence would besufficient to demonstrate that defendant was aware of the postrelease supervision requirement atthe time of the plea, because it was not until the sentencing proceeding that the People alertedCounty Court that the duration of the period of postrelease supervision would be threeyears. While defense counsel expressly [*3]agreed that three yearswas the proper length of such supervision when given an opportunity to address the matter beforethe imposition of sentence, there is no indication in the record that defendant was aware of thestatutorily mandated[FN2] length of the period of postrelease supervision to be imposed or the particular period to which hewould be subjected until the time of sentencing. In our view, "[w]ithout knowledge of the[duration] of postrelease supervision, it was simply not possible for defendant herein to possessthe full understanding necessary to an informed plea" (People v Boyd, 51 AD3d 325, 329[2008]). Accordingly, under these circumstances and given the practical inability of defendant tomove to withdraw his plea prior to imposition of the sentence, we conclude that reversal isrequired despite the absence of a postallocution motion by defendant (see id. at 328-330;People v Louree, 8 NY3d at 545-546; see also People v Hill, 9 NY3d at 192;People v Van Deusen, 7 NY3d at 746).
Peters, Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgments are reversed,on the law, plea vacated, and matter remitted to the County Court of Ulster County for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: To the extent that our priorcases conflict with the holding in Louree that preservation is not required, they are nolonger to be followed.
Footnote 2: Inasmuch as defendant pleadedguilty to a violent felony offense as a second felony offender, the statutorily mandated period ofpostrelease supervision is five years (see Penal Law § 70.06 [6] [c]; § 70.45[2]; People v Chestnut, 18 AD3d965, 966 [2005]).