| People v Grimm |
| 2010 NY Slip Op 00593 [69 AD3d 1231] |
| January 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Raymond B.Grimm, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie Mitzner of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered June 4, 2008, convicting defendant upon his plea of guilty of the crimes of rape in thefirst degree and criminal sexual act in the first degree.
Defendant was charged in a seven-count indictment with various crimes arising from hissexual abuse of a young girl. Prior to trial, he pleaded guilty to two counts of predatory sexualassault against a child and agreed to waive his right to appeal in return for a prison term of 18years. He was further advised by County Court that it would only be bound by its sentencingpromise if he continued to accept responsibility for the crimes and was honest with the ProbationDepartment during the presentence investigation. The People moved for imposition of anenhanced sentence based upon defendant's failure to admit to the crimes during the ProbationDepartment's investigation, and defendant moved to set aside his guilty plea. County Courtdenied defendant's motion, granted the People's motion, and sentenced defendant to an aggregateprison term of 50 years and postrelease supervision of five years.[FN1]Defendant now appeals, [*2]arguing, among other things, that hisplea was not knowing, intelligent and voluntary. As defendant was not advised of the length ofthe period of mandatory postrelease supervision prior to sentencing, we agree that vacatur isrequired.
Initially, while defendant purportedly waived his right to appeal, the postrelease supervisionissue relates to the voluntariness of defendant's plea and, thus, survives any appeal waiver(see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Rucker, 67 AD3d 1126, 1127 [2009]). Nor was defendantrequired to raise it in his motion to vacate the plea, as preservation of the issue by postallocutionmotion is not required (see People vBoyd, 12 NY3d 390, 393 [2009]; People v Louree, 8 NY3d 541, 545-546 [2007]; People vRucker, 67 AD3d at 1127 n).
Turning to the merits, for a guilty plea to be knowing, voluntary and intelligent, "a defendantmust be informed of the direct consequences of the plea" (People v Hill, 9 NY3d 189, 191 [2007], cert denied 553US —, 128 S Ct 2430 [2008]). Those consequences include a term of mandatorypostrelease supervision and, thus, "a defendant pleading guilty to a determinate sentence must beaware of the postrelease supervision component of that sentence in order to knowingly,voluntarily and intelligently choose among alternative courses of action, [and] the failure of acourt to advise of postrelease supervision requires reversal of the conviction" (People v Catu, 4 NY3d 242, 245[2005]; see People v Hill, 9 NY3d at 191; People v Thomas, 68 AD3d 1445, 1446-1447 [2009]). In order tosatisfy the demands of due process, a defendant must be aware of not only the existence of thepostrelease supervision component to a sentence, but also the promised or potential duration ofthat component if a negotiated sentence is a part of the plea agreement (see People vThomas, 68 AD3d at 1446-1447; People v Miller, 62 AD3d 1047, 1048 [2009]; People v Rivera, 51 AD3d 1267,1269-1270 [2008]; People v Boyd,51 AD3d 325, 327-328 [2008], mod on other grounds 12 NY3d 390 [2009]; cf. People v Cullen, 62 AD3d1155, 1156-1157 [2009], lv denied 13 NY3d 795 [2009]). In this case, County Courtmade a specific sentencing commitment, but mentioned postrelease supervision only once duringthe plea colloquy and failed to promise a specific term of postrelease supervision or specify thepermissible range thereof. Accordingly, reversal is required under the facts presented (seePeople v Rivera, 51 AD3d at 1269-1270; cf. People v Cullen, 62 AD3d at1156-1157).[FN2]
Defendant's remaining arguments have been rendered academic in light of the foregoing.
Spain, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment is reversed,on the law, plea vacated, and matter remitted to the County Court of Sullivan County for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: The People requested thatdefendant's convictions be reduced to the lesser crimes of rape in the first degree and criminalsexual act in the first degree in order to render determinate prison sentences legally permissible(see Penal Law §§ 70.00, 70.02, 70.80 [3], [6], [7] [b]). County Court didnot explicitly rule on that motion at sentencing, but nevertheless imposed determinate prisonterms on both counts and later issued an order amending the uniform sentence and commitmentto reflect convictions upon the lesser charges.
Footnote 2: Contrary to the People'sargument, Penal Law § 70.85 will not save the judgment of conviction here, as CountyCourt failed to specify the term of postrelease supervision during the plea colloquy (seePeople v Rucker, 67 AD3d at 1127-1128).