| People v Jordan |
| 2009 NY Slip Op 08361 [67 AD3d 1406] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Curtis J.Jordan, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedJanuary 24, 2008. The judgment convicted defendant, upon his plea of guilty, of attemptedrobbery in the first degree and assault in the second 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 Erie County Court for further proceedings on thesuperior court information.
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 [3]) and assaultin the second degree (§ 120.05 [2]), defendant contends that his plea of guilty to attemptedrobbery was illegal under CPL 195.20 and 220.20 because that crime was not a lesser includedoffense of any charge on which he was held for grand jury action and thus that his plea must bevacated because the superior court information (SCI) was jurisdictionally defective. We rejectthat contention. Defendant was held for grand jury action on a charge of attempted robbery in thefirst degree under subdivision (2) rather than subdivision (3) of Penal Law § 160.15, buthe was charged in the SCI with the commission of a crime under subdivision (3) and wasultimately convicted under that subdivision. Pursuant to CPL 195.20, however, "the offensesnamed in an SCI may include any offense for which the defendant was held for action of a grandjury and any offense or offenses properly joinable therewith pursuant to [CPL] 200.20" (People v Kohl, 19 AD3d 1155,1156 [2005] [internal quotation marks omitted]). A defendant is "held for the action of the[g]rand [j]ury on the lesser included offenses as well as a greater offense charged in the felonycomplaint" (People v Menchetti, 76 NY2d 473, 477 [1990]; see People v Goforth, 36 AD3d1202, 1203 [2007], lv denied 8 NY3d 946 [2007]). Here, the record establishes thatdefendant was held for grand jury action on a charge of assault in the first degree (Penal Law§ 120.10 [1]), and the count of assault in the second degree charged in the SCI is a lesserincluded offense of assault in the first degree (see CPL 1.20 [37]; see generallyPeople v Glover, 57 NY2d 61, 63 [1982]). Inasmuch as the count of attempted robbery in thefirst degree under subdivision (3) of Penal Law § 160.15 was joinable with the count ofassault in the second degree charged in the SCI (see CPL 200.20 [2] [a]; see alsoCPL [*2]40.10 [2]), defendant's instant jurisdictionalchallenge is without merit.
We agree with defendant, however, that the plea must be vacated because it was notknowingly, intelligently and voluntarily entered. " ' [W]here a trial judge does not fulfill theobligation to advise a defendant of postrelease supervision during the plea allocution, thedefendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal,notwithstanding the absence of a postallocution motion' " (People v Boyd, 12 NY3d 390, 393 [2009], quoting People v Louree, 8 NY3d 541,545-546 [2007]; see People v Maracle [appeal No. 2], 60 AD3d 1336 [2009]). Here, therecord establishes that County Court failed to advise defendant of the postrelease supervisioncomponent of the sentence to be imposed on the conviction of attempted robbery, and incorrectlyadvised defendant of the duration of the period of postrelease supervision that would followdefendant's term of incarceration on the conviction of assault. Contrary to the People'scontention, harmless error analysis does not apply in the event that the court fails to advise adefendant of a period of postrelease supervision (see People v Hill, 9 NY3d 189, 192 [2007], cert denied553 US —, 128 S Ct 2430 [2008]). Although defendant correctly contends that hiswaiver of the right to appeal is invalid (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Moorer, 63 AD3d 1590[2009]), that is of no moment inasmuch as defendant's contention with respect to postreleasesupervision would survive even a valid waiver of the right to appeal (see People vDillon, 67 AD3d 1382 [2009]; People v Cullen, 62 AD3d 1155, 1156 [2009], lv denied 13NY3d 795 [2009]). Thus, the judgment must be reversed, the plea vacated, and the matterremitted to County Court for further proceedings on the SCI (see People v Rivera, 51 AD3d 1267 [2008]).
In view of our determination, we do not address defendant's remaining contentions.Present—Hurlbutt, J.P., Centra, Fahey, Carni and Pine, JJ.