| People v Verhow |
| 2011 NY Slip Op 03404 [83 AD3d 1528] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BarryK. Verhow, Appellant. |
—[*1] Barry K. Verhow, defendant-appellant pro se. Richard M. Healy, District Attorney, Lyons (Jacqueline McCormick of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Wayne County Court (John B. Nesbitt, J.),dated September 29, 2009. The order denied the motion of defendant to vacate a judgment ofconviction pursuant to CPL article 440.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, thesentence is set aside and the matter is remitted to Wayne County Court for further proceedings inaccordance with the following Memorandum: As defendant contends and the People correctlyconcede, County Court erred in denying defendant's pro se motion pursuant to CPL article 440insofar as it sought to set aside the sentence imposed upon his conviction of burglary in the firstdegree (Penal Law § 140.30 [2]) and sexual abuse in the first degree (§ 130.65 [1])and in failing to proceed with resentencing pursuant to Penal Law § 70.85 (cf. People v Rucker, 67 AD3d1126, 1127-1128 [2009]). It is undisputed that, at the time of the plea, defendant was notadvised of the period of postrelease supervision and the sentence was imposed without a periodof postrelease supervision. Defendant moved both to set aside the sentence and to vacate thejudgment of conviction (cf. People vCapers, 68 AD3d 427 [2009]; People v Jordan, 67 AD3d 1406, 1407 [2009]). "The. . . legislative history [of Penal Law § 70.85] indicates that it was. . . intended, in part, to avoid the need to vacate guilty pleas under [Peoplev] Catu [(4 NY3d 242 [2005])] when defendants are not properly advised ofmandatory terms of postrelease supervision" (Rucker, 67 AD3d at 1127; see People v Williams, 82 AD3d1576 [2011]; Governor's Approval Mem, Bill Jacket, L 2008, ch 141, at 13-14). The courtmay resentence a defendant pursuant to the statute when his or her qualifying determinatesentence "is again before the court pursuant to [Correction Law § 601-d] or otherwise, forconsideration of whether to resentence" (Penal Law § 70.85). We conclude that Penal Law§ 70.85 is applicable where, as here, the defendant seeks to set aside his or her sentenceand to vacate the judgment of conviction, inasmuch as the matter is before the court forconsideration of a resentence (cf. Peoplev Grimm, 69 AD3d 1231, 1232 n 2 [2010], lv denied 14 NY3d 888 [2010]).Pursuant to Penal Law § 70.85, "the court may . . . [,] only on consent of thedistrict attorney, re-impose the originally imposed determinate sentence of imprisonment withoutany term of [*2]post[ ]release supervision, which then shall bedeemed a lawful sentence" (seegenerally People v Russ, 68 AD3d 1703 [2009]). In the event that the District Attorneyrefuses to consent to the imposition of the original sentence without a period of postreleasesupervision, we conclude that the court must grant the alternative relief sought by defendant andvacate the judgment of conviction inasmuch as the court failed to advise defendant of the periodof postrelease supervision at the time of the plea (see Catu, 4 NY3d at 244-245;Grimm, 69 AD3d at 1232; cf. Williams, 82 AD3d at 1577), thereby returningdefendant to his "status before the constitutional infirmity occurred" (People v Hill, 9 NY3d 189, 191[2007], cert denied 553 US 1048 [2008]). We therefore reverse the order, set aside thesentence and remit the matter to County Court for further proceedings pursuant to Penal Law§ 70.85 and, if necessary based on the response of the District Attorney, for furtherproceedings on the indictment. Present—Scudder, P.J., Fahey, Carni, Sconiers andMartoche, JJ.