| People v Garcia |
| 2009 NY Slip Op 02828 [61 AD3d 475] |
| April 14, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Raymundo Garcia, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Melissa Pennington of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered October 26,2007, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance inthe third degree, and sentencing him, as a second felony offender, to a term of 3½ years,unanimously reversed, on the law, the plea vacated and the matter remanded for furtherproceedings.
The court's failure to inform defendant at his plea allocution that he would be subject to aperiod of postrelease supervision requires reversal of the conviction (People v Catu, 4 NY3d 242[2005]). In pleading guilty, defendant was entitled to rely on the court's sentencepromise, which, as applicable here, was a prison term of 3½ years with no mention ofanything else. Accordingly, the fact that the prosecutor mentioned postrelease supervision earlierin the plea proceeding does not warrant a different result. A court's failure to warn a defendantprior to pleading guilty of the sentencing consequences of the plea is not subject to harmlesserror analysis (People v Hill, 9NY3d 189, 192 [2007], cert denied 553 US—, 128 S Ct 2430 [2008]; see also People v Van Deusen, 7 NY3d744, 745-746 [2006]). Similarly, there is no reason to depart from the rule that a defendantmay raise a Catu issue for the first time on appeal (see [*2]People v Louree, 8 NY3d541 [2007]). We have considered and rejected the People's remaining arguments.Concur—Tom, J.P., Andrias, Buckley and DeGrasse, JJ.