| People v Cullen |
| 2009 NY Slip Op 03959 [62 AD3d 1155] |
| May 21, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Shawn M.Cullen, II, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria Esposito-Shea of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered March 5, 2007, convicting defendant upon his plea of guilty of the crimeof criminal possession of a weapon in the second degree.
Following an incident in which defendant brought a sawed-off shotgun and ammunition to afraternity house with the stated intention of "kill[ing] everyone there," he was charged in anindictment with criminal possession of a weapon in the second and third degrees. Defendantsubsequently pleaded guilty to the first count of the indictment, criminal possession of a weaponin the second degree, with the understanding that the People would recommend the minimumpermissible sentence. Defendant further executed a written waiver of his right to appeal, whichprovided, among other things, that defendant would "accept and abide by the court's exerciseof discretion within any authorized sentencing range" (emphasis added). County Courtthereafter denied defendant's request that he be treated as a youthful offender and sentenced himto 3½ years in prison, to be followed by five years of postrelease supervision. Nearly a yearlater, County Court informed defendant that the count of the indictment to which he had pleadedguilty had cited an incorrect subdivision of Penal Law § 265.03 and amended defendant'sstatement of conviction to reflect that the correct statutory provision was section 265.03 (1) (b).Defendant appeals, and we now affirm.[*2]
Initially, we reject defendant's argument that he shouldbe permitted to withdraw his plea because he was not informed until sentencing that the durationof the period of postrelease supervision would be five years, as opposed to the minimum of2½ years. Inasmuch as defendant's challenge is directed at the voluntariness of his plea, itis not precluded by his waiver of the right to appeal (see e.g. People v George, 59 AD3d 858, 859 [2009]). Furthermore,the exception to the preservation requirement is applicable to such challenges, i.e., a defendant'smeritorious challenge in this regard is not precluded by his or her failure to raise the issue in apostallocution motion (see People vLouree, 8 NY3d 541, 545-546 [2007]; People v George, 59 AD3d at 859; People v Rivera, 51 AD3d 1267,1269-1270 [2008]; see also People v Lopez, 71 NY2d 662, 666 [1988]).
Turning to the merits, we note that a defendant pleading guilty in exchange for a negotiateddeterminate sentence "must be aware of the postrelease supervision component of that sentencein order to knowingly, voluntarily and intelligently choose among alternative courses of action,[and, generally,] the failure of the court to advise of postrelease supervision"—or theduration thereof—"requires reversal of the conviction" (People v Catu, 4 NY3d 242, 245[2005]; see People v Hill, 9 NY3d189, 191-192 [2007], cert denied 553 US —, 128 S Ct 2430 [2008];People v Rivera, 51 AD3d at 1269-1270; People v Boyd, 51 AD3d 325, 327-329 [2008], mod on othergrounds 12 NY3d 390 [2009]). In this case, however, County Court not only informeddefendant that he would be subject to postrelease supervision, but the plea colloquy reflects thatno sentencing commitment at all was made regarding either the length of defendant's prison termor postrelease supervision. Indeed, the court informed defendant that a sentence higher than theminimum sentence which the People recommended could be imposed, defendant concedes therewas no agreement as to the sentence to be imposed, and he expressly agreed, in his writtenwaiver of appeal, to "accept and abide by the court's exercise of discretion within any authorizedsentencing range." Under these circumstances, it cannot be said that County Court failed to abideby the terms of the plea agreement or abused its discretion in imposing a five-year period ofpostrelease supervision, or that the plea was rendered involuntary because defendant was notinformed of the duration of postrelease supervision during the plea colloquy (see People v Bunce, 45 AD3d982, 984-985 [2007], lv denied 10 NY3d 809 [2008]; People v McKenzie, 28 AD3d942, 943 [2006], lv denied 7 NY3d 759 [2006]; People v Hadsell, 249 AD2d682, 684 [1998], lv denied 92 NY2d 852 [1998]; cf. People v Rivera, 51 AD3d at1269-1270; People v Boyd, 51 AD3d at 327-329).
With respect to the remaining arguments, defendant's valid waiver of his right to appealprecludes both his assertion that County Court improperly denied him youthful offendertreatment (see People v Santana, 55AD3d 1057 [2008]; People vIbralic, 54 AD3d 1073 [2008], lv denied 11 NY3d 832 [2008]) and hischallenge to the reference in the indictment to an incorrect subsection of Penal Law §265.03, inasmuch as the error did not render the indictment jurisdictionally defective or the pleainvoluntary (see People v Miller,23 AD3d 699, 701 [2005], lv denied 6 NY3d 815 [2006]; People v Stauber,307 AD2d 544, 545 [2003], lv denied 100 NY2d 599 [2003]; Faccioli v State of NewYork, 26 AD2d 604, 605 [1966]; see also People v Iannone, 45 NY2d 589, 600-601[1978]; People v McKenzie, 221 AD2d 743, 744 [1995]).
Peters, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.