| People v Coleman |
| 2009 NY Slip Op 03271 [61 AD3d 1383] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Richard L.Coleman, Respondent. |
—[*1] David P. Elkovitch, Auburn, for defendant-respondent.
Appeal from an order of the Cayuga County Court (Thomas G. Leone, J.), entered January16, 2008. The order granted the CPL 440.10 motion of defendant and vacated the judgmentconvicting defendant of, inter alia, burglary in the first degree.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: The People appeal from an order granting defendant's CPL 440.10 motionand vacating the judgment convicting defendant upon his plea of guilty of, inter alia, burglary inthe first degree (Penal Law § 140.30 [3]). We conclude that County Court properlyvacated the judgment on the ground that defendant was not advised prior to entering his plea thathe would be subject to a period of postrelease supervision (see People v Catu, 4 NY3d 242, 244-245 [2005]; People v Powless, 46 AD3d 1350[2007]). Inasmuch as the court did not impose a period of postrelease supervision at the time ofsentencing and defendant was unaware of its imposition until after his direct appeal was decided,we reject the People's contention that the motion is barred by CPL 440.10 (2) (c) (seePowless, 46 AD3d 1350 [2007]). Present—Scudder, P.J., Peradotto, Carni, Green andGorski, JJ.