| People v Hogue |
| 2009 NY Slip Op 03605 [62 AD3d 410] |
| May 5, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v William Hogue, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Order, Supreme Court, New York County (Charles H. Solomon J.), entered on or aboutFebruary 27, 2007, which denied defendant's CPL 440.10 motion to vacate a judgment, samecourt and Justice, rendered on or about January 25, 2000, and denied his CPL 440.20 motion toset aside his sentence, unanimously modified, on the law, to the extent of vacating defendant'ssentence and remanding for resentencing, and otherwise affirmed.
Although defendant's conviction required the imposition of a term of postrelease supervision(PRS), the court did not mention PRS during the plea allocution (see People v Catu, 4 NY3d 242[2005]), and failed to impose any term of PRS at sentencing, either orally or otherwise (see People v Sparber, 10 NY3d457 [2008]). However, defendant did not raise any issue relating to PRS on his direct appealto this Court. Defendant was not entitled to raise, by way of a CPL 440.10 motion, a claim thatthe lack of a warning that his sentence would include PRS rendered the plea involuntary underCatu, because "the omission at issue is clear from the face of the record" (People v Louree, 8 NY3d 541,546 [2007]; see also People v Cooks, 67 NY2d 100 [1986]; CPL 440.10 [2] [c]). People v Hill (9 NY3d 189[2007], cert denied 553 US—, 128 S Ct 2430 [2008]) is not to the contrary, as theissue there was raised on direct appeal. There was no impediment to defendant raising this issueon his direct appeal, and to the extent he contends the attorney who represented him on thatappeal rendered ineffective assistance, that claim would require a coram nobis motion addressedto this Court (see People vCuadrado, 37 AD3d 218, 223 [2007], affd 9 NY3d 362 [2007]).
Nevertheless, defendant's sentence is presently unlawful because it does not include a periodof PRS. Concur—Friedman, J.P., Sweeny, McGuire, Renwick and Freedman, JJ.
Reargument granted and, upon reargument, the decision and order of this Court entered onDecember 23, 2008 (57 AD3d 390 [2008]) recalled and vacated and a new decision and ordersubstituted therefor. [*2]