| People v Rucker |
| 2009 NY Slip Op 08087 [67 AD3d 1126] |
| November 12, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v StephonRucker, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Stephanie E. Hughes, Law Intern), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County (Giardino, J.),rendered January 29, 2008, convicting defendant upon his plea of guilty of the crimes of burglaryin the first degree (two counts), robbery in the second degree (four counts), assault in the thirddegree (two counts) and grand larceny in the fourth degree (two counts).
In November 2005, defendant allegedly assaulted and robbed two people in their apartmentin the City of Schenectady, Schenectady County. He was subsequently indicted for kidnappingin the second degree (two counts), burglary in the first degree (two counts), robbery in thesecond degree (four counts), assault in the third degree (two counts), and grand larceny in thefourth degree (two counts). After a Wade hearing, County Court determined, amongother things, that the circumstances under which the police conducted an identification from aphotographic array were not unduly suggestive. Defendant waived his right to a jury trial andelected to proceed to a bench trial. Following opening statements on the day of trial, he pleadedguilty to the offenses charged in the indictment except for the two kidnapping counts, whichwere dismissed pursuant to the plea agreement. He was subsequently sentenced to an aggregateprison term of 12 years and five years of postrelease supervision. Defendant now appeals.
Contrary to defendant's claim, we find that he knowingly, intelligently and voluntarilywaived his right to appeal. During the plea colloquy, County Court explained the waiver of the[*2]right to appeal to defendant in plain and clear language.Defendant stated that he understood, and then further reviewed a written waiver with his counseland signed it in open court. When the court asked him if he had any questions about his plea orhis waiver of the right to appeal, he responded by apologizing for his actions. The record as awhole establishes the validity of the waiver (see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Rosseter, 62 AD3d 1093,1094 [2009]; People v Collins, 53AD3d 932, 933 [2008], lv denied 11 NY3d 831 [2008]). This determinationprecludes our review of defendant's suppression claim (see People v Kemp, 94 NY2d831, 833 [1999]; People vMcMillan, 55 AD3d 1064, 1066 [2008], lv denied 11 NY3d 899 [2008]).
Defendant's challenges to the voluntariness of his plea survive his waiver of the right toappeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v McMillan, 55AD3d at 1065). Relying on the holding of the Court of Appeals in People v Catu (4 NY3d 242, 245[2005]), defendant contends that his plea must be vacated because he was not advised during theplea colloquy that postrelease supervision would be a component of his sentence. While thePeople concede that County Court's failure to mention postrelease supervision during theallocution renders the plea defective, they contend that the matter should be remitted pursuant toPenal Law § 70.85 to the sentencing court where, with the District Attorney's consent,defendant may be sentenced to the agreed-upon term of imprisonment without any term ofpostrelease supervision.[FN*]
Penal Law § 70.85 took effect on June 30, 2008, and establishes a statutory exceptionto mandatory postrelease supervision under certain circumstances. The provision was passed as aresponse to recent decisions of the Court of Appeals addressing the consequences of the failureof sentencing courts to pronounce mandatory terms of postrelease supervision at the time ofsentencing (see People v Sparber,10 NY3d 457, 469-472 [2008]; Matter of Garner v New York State Dept. of Correctional Servs., 10NY3d 358, 362-363 [2008]). The statute's legislative history indicates that it was alsointended, in part, to avoid the need to vacate guilty pleas under Catu when defendantsare not properly advised of mandatory terms of postrelease supervision (see Governor'sApproval Mem, Bill Jacket, L 2008, ch 141, at 13-14; People v Boyd, 12 NY3d 390, 393-394 [2009]). However, theprovision's application is limited by its plain language "only to cases in which. . . the court did not explicitly state . . . a term [of postreleasesupervision] when pronouncing sentence" (Penal Law § 70.85 [emphasis added]). In thismatter, although County Court failed to mention postrelease supervision during the pleacolloquy, it did explicitly state the terms of mandatory postrelease supervision at the time ofsentencing. Penal Law § 70.85 is therefore inapplicable (see People v Puntervold, 60 AD3d1090, 1090-1091 [2009]; People vMontanez, 55 AD3d 372, 372-373 [2008], lv granted 12 NY3d 760 [2009]). Asa result of the failure to advise defendant during the allocution that postrelease supervisionwould be a component of his sentence, the plea must be vacated (see People v Catu, 4NY3d at 245; People v Rivera, 51AD3d 1267, 1270 [2008]).
This determination makes it unnecessary to reach defendant's claim that County Court failedto properly advise him of a potential intoxication defense. In any event, this claim is withoutmerit because the court fully satisfied its obligation in this regard (see People v Sterling,[*3]57 AD3d 1110, 1112 [2008], lv denied 12 NY3d 788[2009]; People v Munck, 278 AD2d 662, 662-663 [2000]).
Mercure, J.P., Lahtinen, Kane and McCarthy, JJ., concur. Ordered that the judgment isreversed, on the law, plea vacated, and matter remitted to the County Court of SchenectadyCounty for further proceedings not inconsistent with this Court's decision.
Footnote *: Defendant was not required tomove to withdraw his plea in order to preserve this claim for appellate review (see People v Louree, 8 NY3d 541,545-546 [2007]; People v Rivera,51 AD3d 1267, 1268-1269 [2008]).