| People v Puntervold |
| 2009 NY Slip Op 02635 [60 AD3d 1090] |
| March 31, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RoyPuntervold, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel), forrespondent.
Appeals by the defendant from (1) a judgment of the County Court, Suffolk County(Gazzillo, J.), rendered May 30, 2003, convicting him of criminal sale of a controlled substancein the second degree under indictment No. 2552-02, upon his plea of guilty, and imposingsentence, and (2) a judgment of the same court, also rendered May 30, 2003, convicting him ofrobbery in the first degree and sexual abuse in the first degree under indictment No. 3088-02,upon his plea of guilty, and imposing sentence.
Ordered that the judgments are reversed, on the law, the pleas are vacated, and the mattersare remitted to the County Court, Suffolk County, for further proceedings in accordance herewithand for the entry of an order pursuant to Correction Law § 168-n (5).
The plea minutes reveal that the defendant was not informed, prior to entering his plea onindictment No. 3088-02, that his sentence would necessarily include a period of postreleasesupervision. Therefore, the plea on that indictment must be vacated (see People v Hill, 9NY3d 189, 193 [2007]; People v Louree, 8 NY3d 541, 545 [2007]; People vCatu, 4 NY3d 242, 245 [2005]; People v Lorick, 59 AD3d 567 [2009]). Moreover,inasmuch as the defendant's plea of guilty on indictment No. 2552-02 was induced by thepromise that the sentences on the two indictments would run concurrently, reversal of thejudgment on indictment No. 3088-02 requires reversal of the judgment on indictment No.2552-02 as well (see People [*2]v Rowland, 8 NY3d 342,344-345 [2007]; People v Pichardo, 1 NY3d 126, 129 [2003]; People v Boston,75 NY2d 585, 589 [1990]; People v Fuggazzatto, 62 NY2d 862, 863 [1984]).
The People's contention that Penal Law § 70.85 permits the court to resentence thedefendant on indictment No. 3088-02 to determinate prison terms not including postreleasesupervision is without merit as the plain language of that statute makes it inapplicable to cases,such as this one, in which the sentencing court explicitly imposed a period of postreleasesupervision at sentencing (see People v Montanez, 55 AD3d 372, 372-373 [2008]).Rivera, J.P., Ritter, Covello and Angiolillo, JJ., concur.