| People v Stewart |
| 2009 NY Slip Op 08490 [67 AD3d 553] |
| November 19, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Andre Stewart, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Order, Supreme Court, New York County (Bruce Allen J.), entered on or about April 3,2009, which denied defendant's CPL article 440 motion, unanimously affirmed.
When defendant pleaded guilty in 2003, the court did not inform him of the specific term ofpostrelease supervision he would be receiving, although it did inform him it would impose themaximum permissible term. At sentencing the court imposed five years' postrelease supervision.The omission of the warning required under People v Catu (4 NY3d 242 [2005]) "is clear from the face of therecord and therefore not properly raised in a CPL article 440 motion" (People v Louree, 8 NY3d 541,546 [2007]). There is no merit to defendant's argument that this aspect of the Loureedecision is dictum.
Defendant also argues that this rule should not apply to him because his failure to take adirect appeal was not "unjustifiable" within the meaning of CPL 440.10 (2) (c), in that his time totake an appeal expired before Catu was decided, so that an appeal would allegedly havebeen futile. Under that reasoning, since a CPL article 440 motion has no time limit, a defendantwhose conviction was already final could use such a motion to take advantage of any relevantnew development in the law, regardless of whether the new rule applied retroactively oncollateral review (cf. Policano vHerbert, 7 NY3d 588, 603-604 [2006]). Moreover, it would not have been "futile" toraise the issue of lack of advice concerning postrelease supervision on appeal; defendant had thesame opportunity as the defendant in Catu to do so. Concur—Tom, J.P., Friedman,Moskowitz, Freedman and Abdus-Salaam, JJ.