| People v Morbillo |
| 2008 NY Slip Op 09102 [56 AD3d 694] |
| November 18, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Morbillo, Also Known as Jesus Torres,Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.),rendered June 20, 2007, convicting him of robbery in the first degree (two counts), upon his pleaof guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the plea is vacated, and the matter isremitted to the County Court, Suffolk County, for further proceedings in accordance herewith.
During the plea proceedings, the County Court failed to advise the defendant that hissentence would run consecutively to the undischarged sentence on his prior conviction. Atsentencing, over the defendant's objection, the County Court imposed a consecutive sentencepursuant to Penal Law § 70.25 (2-a).
When a court fails to advise the defendant of the direct consequences of the plea, the pleacannot be deemed knowing, voluntary, and intelligent, and the defendant must be given theopportunity to withdraw the plea (see People v Hill, 9 NY3d 189, 191 [2007], certdenied 553 US —, 128 S Ct 2430 [2008]; People v Harris, 61 NY2d 9,17 [1983]). Since the consecutive sentence was a direct consequence of the plea (see People vFord, 86 NY2d 397, 403 [1995]; see also Penal Law § 70.25 [2-a]; Matterof Rivera v Goord, 24 AD3d 679, [*2]680 [2005]), the court'sfailure to advise the defendant at the time of the plea that his sentence would run consecutively tothe undischarged sentence on his prior conviction prevented his plea from being knowing,voluntary, and intelligent (see People v Hill, 9 NY3d at 191; People v Louree, 8NY3d 541, 545 [2007]; People v Catu, 4 NY3d 242, 245 [2005]). Accordingly, wereverse the judgment, vacate the plea, and remit the matter to the County Court, Suffolk County,for a new plea proceeding in which it shall advise the defendant that, should he elect to pleadguilty, his sentence would run consecutively to the undischarged sentence on his priorconviction, and for further proceedings on the indictment thereafter. Rivera, J.P., Florio,Angiolillo, McCarthy and Chambers, JJ., concur.