| People v Dillon |
| 2009 NY Slip Op 08317 [67 AD3d 1382] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Raoul Dillon,Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), renderedNovember 16, 2004. The judgment convicted defendant, upon his plea of guilty, of attemptedrobbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the plea is vacated, and the matter is remitted to Niagara County Court for further proceedingson the indictment.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [1]), defendantcontends that his waiver of the right to appeal is invalid. We reject that contention. Theinclusion of a waiver of the right to appeal as a condition of the plea bargain is neither impropernor against public policy (see People vLopez, 6 NY3d 248, 255 [2006]; People v Seaberg, 74 NY2d 1, 8-10 [1989]).Contrary to defendant's contention, County Court "did not improperly conflate the waiver of theright to appeal with those rights automatically forfeited by a guilty plea" (People v Bentley, 63 AD3d 1624,1625 [2009], lv denied 13 NY3d 742 [2009]; see People v Williams, 49 AD3d 1281, 1282 [2008], lvdenied 10 NY3d 940 [2008]; People v Bilus, 44 AD3d 325 [2007], lv denied 9 NY3d1031 [2008]; cf. People v Moyett, 7NY3d 892 [2006]). Defendant's challenge to the severity of the sentence is encompassed bythe valid waiver of the right to appeal (see Lopez, 6 NY3d at 255-256).
We agree with defendant, however, that the judgment of conviction must be reversed and hisplea vacated because the court failed to advise him prior to his entry of the plea that his sentencewould include a period of postrelease supervision (see People v Hill, 9 NY3d 189, 191-192 [2007], certdenied 553 US —, 128 S Ct 2430 [2008]; People v Catu, 4 NY3d 242 [2005]; People v Walker, 66AD3d 1457 [2009]). Where, as here, " 'a trial judge does not fulfill the obligation to advise adefendant of postrelease supervision during the plea allocution, the defendant may challenge theplea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of apostallocution motion' " (People vBoyd, 12 NY3d 390, 393 [2009], quoting People v Louree, 8 NY3d 541, 545-546 [2007]), [*2]and that challenge survives defendant's waiver of the right toappeal (see People v Cullen, 62AD3d 1155, 1156 [2009], lv denied 13 NY3d 795 [2009]; People v Woods, 46 AD3d 345[2007]). Present—Scudder, P.J., Martoche, Smith, Carni and Green, JJ.