| People v Hernandez |
| 2011 NY Slip Op 03468 [83 AD3d 1581] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v OrlandoHernandez, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedDecember 11, 2006. The judgment convicted defendant, upon his plea of guilty, of attemptedrobbery in the second degree.
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 Monroe County Court for further proceedings onthe indictment.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1]).Although County Court was required to sentence defendant to a five-year period of postreleasesupervision based upon his status as a second felony offender (see § 70.45 [former(2)]; People v Motley [appeal No. 3], 56 AD3d 1158, 1159 [2008]), at the plea the courtinformed defendant only that he would be sentenced to the "minimum" period of postreleasesupervision. Because the court failed to specify the period of postrelease supervision or thepermissible range of postrelease supervision prior to imposing sentence, reversal is required (see People v Thomas, 68 AD3d1445, 1446-1447 [2009]). We reject the People's contention that defendant was required topreserve his challenge to the voluntariness of the plea based on the court's failure, prior tosentencing, to advise him of the period of postrelease supervision to be imposed or theparameters thereof (see People vBoyd, 12 NY3d 390, 393 [2009]; People v Louree, 8 NY3d 541, 545-546 [2007]). "When adefendant is not made aware of mandatory postrelease supervision—or the specificduration or range of that component of postrelease supervision—prior to the imposition ofsentence, the voluntariness of the plea may be challenged on appeal even absent preservation ofthe issue by postallocution motion" (People v Lee, 80 AD3d 1072, 1073 [2011]; see People v Murray, 15 NY3d725 [2010]). Present—Scudder, P.J., Fahey, Carni, Green and Gorski, JJ.