| People v Marinaro |
| 2007 NY Slip Op 09423 [45 AD3d 867] |
| November 27, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Angela Marinaro, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubortof counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (D'Emic,J.), rendered February 16, 2006, convicting her of manslaughter in the first degree, upon her pleaof guilty, and imposing sentence, and (2) a resentence of the same court imposed April 3, 2006,sentencing her to a determinate term of imprisonment of 7½ years and a 5-year period ofpostrelease supervision.
Ordered that the appeal from so much of the judgment as sought review of the sentence isdismissed, as that portion of the judgment was superseded by the resentence; and it is further,
Ordered that the judgment is affirmed insofar as reviewed; and it is further,
Ordered that the resentence is modified, as a matter of discretion in the interest of justice, byreducing the period of postrelease supervision from 5 years to 2½ years; as so modified, theresentence is affirmed.
The defendant pleaded guilty to manslaughter in the first degree, with the understanding thatshe would be sentenced to a determinate term of imprisonment of 7½ years. Thereafter, theSupreme Court sentenced the defendant to a 7½-year prison term. At a subsequentresentencing proceeding, the court added a 5-year period of postrelease supervision to thedefendant's sentence.[*2]
Since the Supreme Court failed to advise the defendantduring the plea proceeding that her sentence would include a period of postrelease supervision,the defendant is entitled to vacatur of her guilty plea (see People v Catu, 4 NY3d 242 [2005]). On appeal, however, thedefendant informs this Court that she does not wish to withdraw her plea. Instead, she seeks amodification of her sentence to a 5-year term of imprisonment and a 2½-year period ofpostrelease supervision, so as to give effect to the Supreme Court's alleged promise to impose a7½-year sentence.
To the extent that the defendant's claim is based upon the Supreme Court's failure to adviseher of the postrelease supervision component of her sentence at the plea proceeding, thuspreventing her from making a voluntary and intelligent choice among alternative courses ofaction, the proper remedy is vacatur of the defendant's guilty plea (see People v Hill, 9 NY3d 189,191 [2007] ["In that the constitutional defect lies in the plea itself and not in the resultingsentence, vacatur of the plea is the remedy for a Catu error"]; see also People v Van Deusen, 7 NY3d744 [2006]; People v Catu, 4 NY3d at 244, 245). "The failure to inform a defendantof the postrelease supervision component of a sentence does not, in and of itself, provide a basisfor modifying the sentence" (People v Housman, 291 AD2d 665, 667 [2002]; see People v Boyce, 12 AD3d 728,729 [2004]; People v Vahedi, 305 AD2d 866 [2003]; People v Lack, 299 AD2d872 [2002]).
To the extent that the defendant's claim is based upon the Supreme Court's failure to fulfill itsalleged sentencing promise (see People v Selikoff, 35 NY2d 227, 239 [1974], certdenied 419 US 1122 [1975]), it is not preserved for appellate review. The principle that apromise which induces guilty plea must be honored "is not applicable where . . . thedefendant's claim has not been preserved for appellate review and where the sentence actuallyimposed was not abusive or illegal" (People v Lewis, 216 AD2d 328, 329 [1995]; see People v Ganoe, 31 AD3d 463[2006]; People v Ifill, 108 AD2d 202 [1985]). At the resentencing proceeding in thiscase, the defendant did not argue that the addition of the period of postrelease supervisionviolated a promise made at the plea proceeding, or otherwise object to the amendment of thesentence. Nor was the sentence that was ultimately imposed abusive or illegal. Thus, thedefendant is not entitled to a sentence modification to fulfill the alleged sentencing promise.
The resentence imposed was excessive to the extent indicated herein. Goldstein, J.P., Fisher,Carni and McCarthy, JJ., concur.