| People v Singh |
| 2011 NY Slip Op 09682 [90 AD3d 1079] |
| December 27, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Devendra Singh, Appellant. |
—[*1]
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and DanielBresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Wong, J.,at plea; Mullings, J., at sentence), rendered June 18, 2008, convicting him of criminal possessionof a weapon in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the plea is vacated, and the matter isremitted to the Supreme Court, Queens County, for further proceedings in accordance herewith.
As the People correctly concede, the plea minutes reveal that the defendant was not advised,prior to entering his plea of guilty, that his determinate term of imprisonment would be followedby a mandatory period of postrelease supervision. Therefore, the judgment of conviction must bereversed and the defendant's plea of guilty must be vacated (see People v Cornell, 16 NY3d 801, 802 [2011]; People v Hill, 9 NY3d 189, 191[2007], cert denied 553 US 1048 [2008]; People v Louree, 8 NY3d 541, 544-545 [2007]; People v Catu, 4 NY3d 242, 245[2005]; People v Peck, 78 AD3d1199, 1200 [2010]; People vLindsay, 72 AD3d 845, 846 [2010]; People v Wilcox, 70 AD3d 1059 [2010]).
While the People request that the matter be remitted pursuant to Penal Law § 70.85 sothat the defendant may be resentenced, which resentence would not include a period ofpostrelease supervision, the plain language of that statute demonstrates that it is not applicablewhere, as here, the sentencing court explicitly imposed a period of postrelease supervision atsentencing (see People vPuntervold, 60 AD3d 1090, 1090-1091 [2009]; see also People v Rucker, 67 AD3d 1126, 1127-1128 [2009]; People v Montanez, 55 AD3d 372,372-373 [2008]). We also decline the People's request that we invoke Judiciary Law § 2-b(3), in effect, to reach the same result that Penal Law § 70.85 would produce, if applicable.Judiciary Law § 2-b (3) provides that "[a] court of record has power . . . todevise and make new process and forms of proceedings, necessary to carry into effect the powersand jurisdiction possessed by it." By enacting Judiciary Law § 2-b (3), the Legislature hasafforded the courts the authority to "fashion necessary procedures consistent with constitutional,statutory, and decisional law" (People vWrotten, 14 NY3d 33, 37 [2009], cert denied 560 US —, 130 S Ct 2520[2010]). Implementing Judiciary Law § 2-b (3) in the manner advocated by the Peoplewould be contrary to, rather than consistent with, the existing statutory and decisional law on thisissue. Dillon, J.P., Angiolillo, Dickerson and Hall, JJ., concur.