| People v Thomas |
| 2009 NY Slip Op 09554 [68 AD3d 1445] |
| December 24, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Kenneth Thomas, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered November 5, 2008, convicting defendant upon his plea of guilty of the crime ofattempted murder in the second degree.
After shooting another individual during an altercation outside of a bar in the City ofCohoes, Albany County, defendant was charged with attempted murder in the second degree,assault in the first degree (two counts), criminal possession of a weapon in the second degree andcriminal possession of a weapon in the third degree. During the trial, defendant pleaded guilty toattempted murder in the second degree with no promised sentence other than that County Courtwould not impose the maximum sentence (see Penal Law §§ 110.00, 125.25[1]). Defendant was thereafter sentenced to a prison sentence of 22 years, plus five years ofpostrelease supervision. Defendant now appeals, contending that because he was never advisedthat his sentence—which is less than the maximum period of incarceration—wouldinclude a postrelease supervision component, his plea must be vacated (see People vCatu, 4 NY3d 242, 244 [2005]).[FN*]
Upon a defendant's decision to plead guilty, " '[a] trial court has the constitutional duty toensure that a defendant . . . has a full understanding of what the plea connotes andits consequences,' " including any postrelease supervision component of the sentence (Peoplev Catu, 4 NY3d at 244-245, quoting People v Ford, 86 NY2d 397, 402-403 [1995]).Here, upon defendant's decision to plead guilty, County Court stated that "there would be nopromise with regard to sentence, except I would not impose the maximum." At no time duringthe plea allocution did the court reference what the statutory maximum sentence was or that aperiod of postrelease supervision would be included as part of defendant's sentence (cf.People v Cullen, 62 AD3d 1155, 1157 [2009], lv denied 13 NY3d 795 [2009]). Asthe Court of Appeals has made clear, Catu errors are violations of "the defendant's dueprocess right—not the defendant's sentencing expectations" (People v Hill, 9NY3d 189, 193 [2007], cert denied 553 US —, 128 S Ct 2430 [2008]; seePeople v Van Deusen, 7 NY3d 744, 746 [2006]). Thus, as the question is not "whether thedefendant got the full benefit of [his or] her plea bargain" (People v Hill, 9 NY3d at 193[internal quotation marks omitted]), it matters not that no specific sentence was promised here(but cf. People v Calkins, 6 AD3d 744, 745 [2004], lv denied 3 NY3d 671[2004]).
Further, although postrelease supervision was discussed during earlier plea offerings, there isno indication that defendant was aware that it would be a mandatory component of the sentencehe would receive upon his plea, as opposed to an element specific to those earlier offers. Underthese circumstances, "[s]ince County Court, at the time defendant entered his plea, did not advisehim that the sentence would include a period of postrelease supervision" (People vTausinger, 55 AD3d 956, 957 [2008]; see People v Catu, 4 NY3d at 245; Peoplev Rivera, 51 AD3d 1267, 1269 [2008]), and because the record does not reveal "thatdefendant was aware of the . . . particular period to which he would be subjecteduntil the time of sentencing" (People v Rivera, 51 AD3d at 1270), defendant did notpossess the " 'full understanding necessary to [make] an informed plea' " (id., quotingPeople v Boyd, 51 AD3d 325, 329 [2008], affd 12 NY3d 390 [2009]). As aresult, defendant's judgment must be reversed and his plea vacated (see People v Catu, 4NY3d at 245).
Cardona, P.J., Mercure, Lahtinen and Kane, JJ., concur. Ordered that the judgment isreversed, on the law, plea vacated, and matter remitted to the County Court of Albany County forfurther proceedings not inconsistent with this Court's decision.
Footnote *: Defendant's challenge to hisplea under these circumstances is not precluded by his failure to preserve the issue by raising itin a postallocution motion (see People v Louree, 8 NY3d 541, 545-546 [2007];People v Rucker, 67 AD3d 1126, 1127 n [3d Dept 2009]).