| People v Padilla |
| 2008 NY Slip Op 03485 [50 AD3d 928] |
| April 15, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Fabian Padilla, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Lois Cullen Valerio and Anthony J.Servino of counsel; Kerry C. Demorizi on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Molea, J.), rendered December 14, 2006, convicting him of burglary in the second degree, uponhis plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
On September 21, 2006 the defendant pleaded guilty to burglary in the second degree in fullsatisfaction of a multicount indictment. In return for the plea, the court promised that it wouldsentence the defendant to a determinate prison term of eight years, and added that it would alsoimpose a period of post-release supervision. The court explained that, although the maximumterm of post-release supervision was five years, it would impose a term of only three years. In thecourse of the ensuing allocution, the prosecutor revealed the People's intention to file a statementalleging that the defendant was a second violent felony offender.
On December 14, 2006 the defendant appeared for sentence. Upon his admission, he wasadjudicated a second violent felony offender. The court then made inquiry regarding informationin the presentence report suggesting that the defendant had been drinking alcohol on the night ofthe crime. The defendant explicitly waived any defense of intoxication and expressed the wish"to reaffirm his plea."
Thereafter, the court asked defense counsel whether she had anything to say prior to [*2]the imposition of sentence. She replied that, although her colleaguefrom the Legal Aid Society who had represented the defendant at the plea had negotiated "thepost-release supervision down to 3 years," the law required a period of five years' post-releasesupervision for the defendant who was a second violent felony offender. "Other than that,"counsel said, "we're ready for sentence." The court replied that "[t]here was some discussion, butas is noted now on the record, [the defendant] is a predicate felon, and . . . thatmandates a 5-years post-release supervision period." Both the defendant and counsel were thenoffered an opportunity to address the court prior to the imposition of sentence. The defendantreplied that he had nothing to say, and counsel declined to say anything further. The courtthereupon imposed a sentence of eight years' incarceration and a five-year period of post-releasesupervision. The defendant appeals.
Contrary to the defendant's contention, as a second violent felony offender he was noteligible for a period of post-release supervision less than five years (see Penal Law§ 70.45 [2]; People v Robinson, 297 AD2d 827 [2002]). This is not a case wherethe court, without comment, simply imposed a five-year period of post-release supervisioninstead of the promised three-year period (cf. People v Catu, 4 NY3d 242 [2005]). Rather, here therequirement that the court impose a five-year, as opposed to the promised three-year, period ofpost-release supervision was raised by defense counsel. After the court acknowledged therequirement and indicated its intent to comply, it gave both counsel and the defendant personallyan opportunity to address the court. Although this opportunity was offered prior to the impositionof sentence, neither the counseled defendant nor his attorney moved to withdraw the plea orasked for time to consider doing so. Inasmuch as the defendant was given the opportunity, anddeclined, to move to withdraw his plea prior to the imposition of sentence, he may not nowchallenge the five-year period of post-release supervision (cf. People v Louree, 8 NY3d 541 [2007]).
The defendant's remaining contention is unpreserved for appellate review (see People vLopez, 71 NY2d 662, 666 [1988]; People v Elcine, 43 AD3d 1176, 1177 [2007]) and, in any event, iswithout merit (see People v Seeber,4 NY3d 780 [2005]). Fisher, J.P., Miller, Carni and Dickerson, JJ., concur.