| People v Miller |
| 2009 NY Slip Op 03643 [62 AD3d 1047] |
| May 7, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MickeyMiller, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Appeals (1) from a judgment of the County Court of Columbia County (Czajka, J.), renderedAugust 31, 2005, convicting defendant upon his plea of guilty of the crime of robbery in thesecond degree, and (2) from an order of said court, entered December 17, 2007, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without ahearing.
In satisfaction of charges arising from an incident in which defendant and severalcoconspirators burglarized a home and the resident suffered a fatal wound, defendant entered aplea of guilty to attempted robbery in the second degree and was sentenced as a second felonyoffender to a seven-year prison term, followed by three years of postrelease supervision.Defendant now appeals, claiming that County Court was required to sentence him to a term ofpostrelease supervision of five years and, therefore, his sentence was illegally imposed and,furthermore, that he was not properly advised of the correct term of postrelease supervision priorto his plea.[FN*]We agree.[*2]
Pursuant to Penal Law § 70.06 (6) (c), a secondfelony offender convicted of a class D violent felony offense must be sentenced to a prison termof at least three years but not more than seven years. In addition, the period of postreleasesupervision for such conviction, pursuant to Penal Law § 70.45 (2), "shall be five years"(see People v Rivera, 51 AD3d1267, 1270 n 2 [2008]). Here, County Court erroneously sentenced defendant to three yearsof postrelease supervision. "Because a defendant pleading guilty to a determinate sentence mustbe aware of the postrelease supervision component of that sentence in order to knowingly,voluntarily and intelligently choose among alternative courses of action, the failure of a court toadvise of postrelease supervision requires reversal of the conviction" (People v Catu, 4 NY3d 242, 245[2005]; accord People v VanDeusen, 7 NY3d 744, 745-746 [2006]; see People v Rivera, 51 AD3d 1267, 1268 [2008]). Additionally,we have held that where a defendant is unaware of the duration of postrelease supervisionrequired, he or she does not possess the " 'full understanding necessary to an informed plea' "(People v Rivera, 51 AD3d at 1270, quoting People v Boyd, 51 AD3d 325, 329 [2008]). Because defendanthere was incorrectly informed that he would receive three years of postrelease supervision, whenby operation of law he was required to receive a term of five years of postrelease supervision, wefind that defendant's decision to plead guilty was not knowing, voluntary and intelligent and,therefore, his plea must be vacated and the judgment of conviction must be reversed (seePeople v Van Deusen, 7 NY3d at 746; People v Tausinger, 55 AD3d 956, 957-958 [2008]; People vRivera, 51 AD3d at 1268). In light of our holding, defendant's other contentions have beenrendered academic.
Cardona, P.J., Spain, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that thejudgment is reversed, on the law, plea vacated, and matter remitted to the County Court ofColumbia County for further proceedings not inconsistent with this Court's decision. Orderedthat the appeal from the order is dismissed, as academic.
Footnote *: By affidavit, defendantinformed this Court that he has withdrawn his appeal regarding the denial of his CPL 440.10motion.