| People v Craig |
| 2008 NY Slip Op 04740 [51 AD3d 559] |
| May 27, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Tyrone Craig, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sheila O'Shea of counsel), forrespondent.
Order, Supreme Court, New York County (Renee White, J.), entered or about July 10, 2006,which denied defendant's CPL 440.10 motion to vacate his judgment of conviction, unanimouslymodified, on the law, to the extent of remanding the matter for resentencing, which shall includethe proper pronouncement of the relevant term of postrelease supervision and, except as somodified, affirmed.
Defendant was convicted, on his guilty plea, of attempted kidnapping in the first degree, aclass B violent felony, and sentenced to a term of 10 years, the minimum sentence prescribed bylaw for a second violent felony offender (Penal Law § 70.04 [3] [a]). On this motion,defendant asserts that the court failed to advise him, either at plea or at sentence, that the term ofincarceration would be followed by a five-year period of postrelease supervision, as mandated bystatute (Penal Law § 70.45 [1], [2]). He contends that such sentence does not comport withthe 10-year term he was promised in exchange for his guilty plea (see People v Catu, 4 NY3d 242,245 [2005]). However, defendant does not seek to vacate his plea but requests modification ofhis sentence to a five-year prison term followed by the mandated five-year period of postreleasesupervision.
It is settled that a defendant's remedy for a Catu violation is withdrawal of the pleaand restoration of the defendant's pre-agreement status (People v Hill, 9 NY3d 189, 191 [2007], cert denied 553 US128 S Ct 2430 [2008]). Where the defendant does not seek to vacate his plea and the sentenceimposed is not in compliance with statutory requirements, the [*2]matter must be remanded for pronouncement of a legal sentence tocorrect the procedural error (People v Sparber, 10 NY3d 457 [2008]).Concur—Tom, J.P., Friedman, Nardelli and Catterson, JJ.