| People v Tausinger |
| 2008 NY Slip Op 07806 [55 AD3d 956] |
| October 16, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v William J.Tausinger, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Sophie A. Jensen of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Warren County (Hall, J.), renderedAugust 29, 2007, convicting defendant upon his plea of guilty of the crime of assault in the seconddegree.
In March 2007, defendant pleaded guilty to assault in the second degree and, pursuant to thenegotiated plea agreement, the imposition of his sentence was adjourned for two months. It was agreedthat if, during those two months, defendant cooperated with the Warren County Sheriff's Departmentand complied with certain conditions imposed in connection with his release, he would be placed oninterim probation for six months. If he successfully completed that period of probation, he would beallowed to withdraw his guilty plea, enter a plea to a misdemeanor and be sentenced to, among otherthings, time served and three years of probation. Defendant was also made aware that if he failed tocomply with these conditions, when sentence was ultimately imposed, it could potentially be "to themaximum." Defendant was not informed that a period of postrelease supervision would also be imposedas part of such a sentence. Subsequently, a bench warrant was issued for defendant's arrest because hefailed, as required by the terms of his plea, to maintain contact with the Sheriff's Department and did nototherwise comply with the conditions of his release.
When defendant appeared before County Court on the warrant, the People [*2]recommended that a prison sentence of 2
Initially, defendant's claim challenging the validity of his plea is not precluded due to his failure toraise this issue in a postallocution motion (seePeople v Louree, 8 NY3d 541, 545-546 [2007]; People v Rivera, 51 AD3d 1267, 1269 [2008]). The only timedefendant was ever informed by County Court that a period of postrelease supervision would beincluded in his sentence was after he had been arrested on the warrant, which occurred months after theplea bargain had been negotiated and his guilty plea had been entered. In addition, the only reference topostrelease supervision was made after his arrest on the warrant when the court stated that, as asecond violent felony offender, "the very minimum he would serve is [five] years determinate, plus[five] years post release supervision" (emphasis added). When defendant protested and claimedthat he did not have a prior violent felony conviction, County Court immediately responded "that wouldmake a difference," and, if true, could result in a different sentence. The ambiguous nature of thisexchange—made long after defendant's plea allocution—did not, under the circumstancespresented, serve to put defendant on notice that a period of postrelease supervision would be includedin his sentence. As such, defendant was not required, in order to preserve this issue, to move to setaside his guilty plea prior to sentence being imposed (see People v Louree, 8 NY3d at545-546; People v Rivera, 51 AD3d at 1269).
Turning to the merits of defendant's appeal, a knowing, intelligent and voluntary guilty plea requiresthat a defendant be informed as to the full extent of the exposure he faces upon sentencing, and,specifically, that a period of postrelease supervision would be included in any sentence that was to beimposed (see People v Catu, 4 NY3d242, 245 [2005]; People v Rivera, 51 AD3d at 1269). Since County Court, at the timedefendant entered his plea, did not advise him that the sentence would include a period of postreleasesupervision, his plea must be vacated and his conviction must be reversed (see id.). "Because adefendant pleading guilty to a determinate sentence must be aware of the postrelease supervisioncomponent of that sentence in order to knowingly, voluntarily and intelligently choose among alternativecourses of action, the failure of a court to advise of postrelease supervision requires reversal of theconviction" (People v Catu, 4 NY3d at 245; compare Matter of Garner v New York State Dept. of Correctional Servs.,10 NY3d 358 [2008]; People vHill, 9 NY3d 189 [2007], cert denied 553 US —, 128 S Ct 2430 [2008] [thedefendant did not seek remedy of vacatur of plea]). In light of this conclusion, we need not addressdefendant's remaining contentions.
Cardona, P.J., Peters, Rose and Stein, JJ., concur. Ordered that the judgment is reversed, on thelaw, plea vacated, and matter remitted to the County Court of Warren County for further proceedingsnot inconsistent with this Court's decision.