| People v Rivera |
| 2012 NY Slip Op 00237 [91 AD3d 498] |
| Jnury 17, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ramon Rivera, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (John B.F. Martin of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered February 24,2009, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance inthe fourth degree, and sentencing him to a term of eight years with three years' postreleasesupervision, unanimously reversed, on the law, the plea vacated, the full indictment reinstated,and the matter remanded for further proceedings.
Defendant entered into a plea agreement providing that he would receive a dismissal in theinterest of justice if he successfully completed a drug treatment program and otherwise compliedwith the terms of the agreement. The agreement also provided that if defendant absconded fromthe treatment program he would be sentenced to an eight-year prison term. During the pleaallocution, the court noted that if defendant absconded from the program, he would receive aterm of postrelease supervision (PRS) in addition to the eight-year prison term. The court did not,however, specify the length of the term of PRS to be imposed in the event defendant absconded.The first time the court ever informed defendant that his sentence would be eight years plus threeyears' PRS was when it actually imposed sentence, after defendant absconded and was returnedon a warrant.
At the outset, we reject the People's assertion that defendant was required to preserve hispresent challenge to the voluntariness of his plea. Since the plea court "failed to advise defendantof the specific term of PRS . . . a postallocution motion was not required tochallenge the sufficiency of the plea" (People v Boyd, 12 NY3d 390, 393 [2009]; see also People v Louree, 8 NY3d541, 545-546 [2007]). Unlike the situation in People v Murray (15 NY3d 725 [2010]), defendant was not"advised of what the sentence would be, including its PRS term, at the outset of the sentencingproceeding" (id. at 727). When the prosecutor inaccurately stated the terms of defendant'splea agreement to the sentencing court, and requested a particular term of PRS, this did notconstitute the type of advice to defendant contemplated by Murray.
Because PRS is a direct consequence of a conviction (People v Catu, 4 NY3d 242, 244 [2005]), a court must advise adefendant who pleads guilty not only of the fact that PRS will be imposed, but also of the lengthof the PRS term (see People v Boyd, 12 NY3d at 393; see also [*2]People v McAlpin, 17NY3d 936 [2011]). Because the plea allocution did not satisfy that requirement, the plea wasnot knowingly, voluntarily, and intelligently made. Concur—Mazzarelli, J.P., Sweeny,Renwick, Richter and Manzanet-Daniels, JJ.