| People v Powless |
| 2007 NY Slip Op 10209 [46 AD3d 1350] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v James Powless,Respondent. |
—[*1] Eoannou Lana & D'Amico, Buffalo (Jeremy D. Schwartz of counsel), fordefendant-respondent.
Appeal from an order of the Orleans County Court (James P. Punch, J.), entered June 15,2006. The order granted defendant's motion pursuant to CPL 440.10 to vacate the judgmentconvicting defendant, upon his plea of guilty, of sodomy in the first degree (two counts).
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed.
Memorandum: The People appeal from an order granting defendant's CPL 440.10 motionand vacating the judgment convicting defendant, upon his plea of guilty, of two counts ofsodomy in the first degree (Penal Law former § 130.50 [1]). County Court properlyvacated the judgment on the ground that defendant was not advised before entering his plea thathe would be subject to a five-year period of postrelease supervision (see § 70.45;People v Catu, 4 NY3d 242,244-245 [2005]). Contrary to the People's contention, defendant's motion is not barred by CPL440.10 (2) (c) inasmuch as the court did not explicitly impose postrelease supervision at the timeof sentencing, and defendant did not become aware of its imposition until after his direct appealfrom the judgment of conviction was decided. Thus, defendant did not "unjustifiabl[y]" fail toraise the issue on his direct appeal (id.; cf. People v Louree, 8 NY3d 541, 545-546 [2007]).
Finally, we note that the People contended for the first time at oral argument of this appealthat we should apply the reasoning of the Second Circuit Court of Appeals in Earley vMurray (451 F3d 71 [2006], reh denied 462 F3d 147 [2006]) to this case. We do notaddress that contention, in the interest of fairness to defendant. That case was decidedapproximately six months before the People submitted their brief on appeal, which contained noreference to that case, nor did they submit a supplemental brief addressing the applicability ofthat case prior to oral argument of this appeal. Present—Hurlbutt, J.P., Gorski, Martoche,Lunn and Peradotto, JJ.