| People v Burns |
| 2010 NY Slip Op 01071 [70 AD3d 1301] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Steven Burns,Appellant. (Appeal No. 1.) |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered January5, 2007. The judgment convicted defendant, upon his plea of guilty, of robbery in the firstdegree.
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 theindictment.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of robbery in the first degree (Penal Law § 160.15 [4]), and in appeal No. 2he appeals from a judgment convicting him upon his plea of guilty of attempted murder in thesecond degree (§§ 110.00, 125.25 [1]). We agree with defendant that the judgmentsof conviction must be reversed and the pleas vacated because County Court failed to advisedefendant prior to his entry of the pleas that his sentences would include periods of postreleasesupervision (see People v Catu, 4NY3d 242, 245 [2005]). Even assuming, arguendo, that the waiver by defendant of his rightto appeal is valid, we conclude that his challenge to the pleas survives that waiver. "Where, ashere, a trial judge does not fulfill the obligation to advise a defendant of postrelease supervisionduring the plea allocution, the defendant may challenge the plea as not knowing, voluntary andintelligent on direct appeal, notwithstanding the absence of a postallocution motion[,]. . . and that challenge survives defendant's waiver of the right to appeal" (People v Dillon, 67 AD3d 1382,1383 [2009] [internal quotation marks omitted]). In view of our decision, we do not addressdefendant's remaining contention. Present—Scudder, P.J., Peradotto, Carni, Green andGorski, JJ.