| People v Lee |
| 2011 NY Slip Op 00441 [80 AD3d 1072] |
| January 27, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Omar Lee,Also Known as Omari H. Lee, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered January 28, 2008, convicting defendant upon his plea of guilty of thecrime of criminal possession of a controlled substance in the third degree.
Defendant was arrested after a police investigator, who was watching live video through asurveillance camera, observed him selling crack cocaine over a three-hour period on a streetcorner in the City of Schenectady, Schenectady County. A search of defendant's person revealed$700 and crack cocaine packaged for sale. Defendant was charged in an indictment with criminalpossession of a controlled substance in the third degree, and County Court (Catena, J.) denied hismotion to suppress the evidence recovered from him at the time of his arrest.
After defendant rejected a plea offer from the People and indicated his willingness to pleadguilty to the entire indictment, County Court (Drago, J.) stated that the court would "offer. . . a cap of a seven year determinate sentence, post-release supervision in the rangeof one and a half to three years" if defendant would plead guilty to the indictment and waive hisright to appeal. Defendant initially rejected the court's offer because he was unwilling to waivehis right to appeal, but pleaded guilty to the indictment several days later, waiving his right toappeal except for the suppression issue. During the plea allocution, County Court (Giardino, J.)[*2]explained that there would be "a cap of seven years" on thesentence of imprisonment that defendant would receive and that "[t]here would be a sentence ofpost-release supervision at [the court's] discretion." Subsequently, at the outset of the sentencingproceeding, County Court indicated that it had "promised . . . defendant a cap ofseven years in . . . prison with three years of post-release supervision," andthereafter sentenced defendant to those terms. Defendant now appeals, asserting that he wasunaware that the term of postrelease supervision initially specified by County Court was a termof the plea agreement that he ultimately accepted because the court failed to reiterate thepermissible range of postrelease supervision during the plea allocution.
It is settled that "a defendant pleading guilty to a determinate sentence must be aware of thepostrelease supervision component of that sentence in order to knowingly, voluntarily andintelligently choose among alternative courses of action" (People v Catu, 4 NY3d 242, 245 [2005]; accord People v Boyd, 12 NY3d390, 392 [2009]). When a defendant is not made aware of mandatory postreleasesupervision—or the specific duration or range of that component of postreleasesupervision—prior to the imposition of sentence, the voluntariness of the plea may bechallenged on appeal even absent preservation of the issue by postallocution motion (see People v Murray, 15 NY3d725, 726-727 [2010]; People v Boyd, 12 NY3d at 393; People v Louree, 8 NY3d 541,545-546 [2007]). The rationale for dispensing with the preservation requirement under suchcircumstances is grounded in the practical inability of a defendant to move to withdraw a pleawhen the court does not specify the potential term of postrelease supervision prior to the actualimposition of sentence (see People v Louree, 8 NY3d at 546). In contrast, where, as here,a "defendant was advised of what the sentence would be, including its [postrelease supervision]term, at the outset of the sentencing proceeding," the "defendant could have sought relief fromthe sentencing court in advance of the sentence's imposition" and, therefore, the "rationale fordispensing with the preservation requirement is not . . . applicable" (People vMurray, 15 NY3d at 727). Accordingly, inasmuch as defendant did not raise the issue beforethe sentencing court despite the court advising him of the applicable postrelease supervision termat the outset of the sentencing proceeding, his challenge to the voluntariness of his plea is notpreserved for our review and we decline to reverse in the interest of justice under thecircumstances of this case (see id. at 726-727; see also People v Davis, 79 AD3d1267, 1269 [2010]; People vShaw, 78 AD3d 1376, 1377 [2010]; but see People v Rivera, 51 AD3d1267, 1269-1270 [2008]).
Finally, there is no merit to defendant's remaining argument that the People failed to lay anadequate foundation for admission of the surveillance video at his suppression hearing. Thevideo was authenticated by the testimony of Robert Voris, an investigator who was a cameracoordinator for the public surveillance camera project of the Schenectady County DistrictAttorney's office. Voris watched the live video showing defendant allegedly engaged indrug-dealing activity, copied that footage onto the CD that was shown at the suppression hearing,and testified that it was a fair and accurate representation of what he had observed live on thedate in question (see People v Patterson, 93 NY2d 80, 84 [1999]; People vFondal, 154 AD2d 476, 476-477 [1989], lv denied 75 NY2d 770 [1989]).
Rose, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgment is affirmed.