| People v Chiacchiarini |
| 2012 NY Slip Op 00256 [91 AD3d 1118] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Albert F.Chiacchiarini, Appellant. |
—[*1] Joseph G. Fazzary, District Attorney, Watkins Glen (Matthew C. Hayden of counsel), forrespondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of Schuyler County(Argentsinger, J.), rendered June 25, 2009, which resentenced defendant following his convictionupon his plea of guilty of the crime of sodomy in the first degree (two counts), and (2) bypermission, from an order and amended order of said court, entered March 17, 2011 and August10, 2011, which, among other things, denied defendant's motions pursuant to CPL 440.10 tovacate the judgment of conviction, without a hearing.
In May 2000, defendant pleaded guilty to two counts of sodomy in the first degree and wassentenced to two consecutive 10-year prison terms. No mention of the mandatory period ofpostrelease supervision required pursuant to Penal Law § 70.45 was made either during theplea colloquy or at sentencing, nor did County Court actually impose a period of postreleasesupervision at the time of sentencing. Nearly seven years later, defendant filed the first of two prose motions pursuant to CPL 440.10 seeking to vacate his conviction upon the ground that his pleawas involuntary due to an alleged Catu violation (see People v Catu, 4 NY3d 242 [2005]) and, further, that he hadbeen denied the effective assistance of counsel. In June 2009, and with the People's consent,County Court resentenced defendant pursuant to Penal Law § 70.85 to two [*2]consecutive 10-year prison terms with no period of postreleasesupervision. County Court also denied defendant's CPL article 440 motions,[FN*]as well as his subsequent motion for reconsideration. These appeals ensued.
Defendant's principal argument on appeal is that County Court's failure to apprisehim—at the time of his plea—that he was subject to a mandatory period ofpostrelease supervision renders the underlying plea involuntary and mandates the vacatur thereofunder Catu—even though no period of postrelease supervision ever was imposedby either the sentencing court or the Department of Corrections and Community Supervision. AsCounty Court correctly observed, where, as here, the alleged Catu violation appears onthe face of the record and, therefore, could have been raised on a direct appeal, such claim cannotbe advanced in the context of a CPL article 440 motion (see People v Stewart, 16 NY3d 839, 840-841 [2011]; People v Louree, 8 NY3d 541, 546n [2007]; People v Hogue, 62 AD3d410, 410-411 [2009]; People vRivera, 51 AD3d 1267, 1269 [2008]; People v Figueroa, 45 AD3d 297, 298 [2007]). Accordingly,defendant's CPL 440.10 motions were properly denied without a hearing on this basis.
Our inquiry does not end there, however, because defendant also challenges County Court'sresentencing of him, contending that the resentencing procedure set forth in Penal Law §70.85—although designed "in part, to avoid the need to vacate guilty pleas underCatu when defendants are not properly advised of mandatory terms of postreleasesupervision" (People v Rucker, 67AD3d 1126, 1127 [2009])—cannot be invoked to remedy a constitutional defect in theplea itself. Thus, defendant asserts, the sole remedy for a Catu violation is vacatur of theunderlying plea. We disagree.
Had the District Attorney refused to consent to the reimposition of the original sentenceabsent any term of postrelease supervision, County Court plainly would have been compelled tovacate the judgment of conviction, thereby restoring defendant to his pre-plea status (cf. People v Verhow, 83 AD3d1528, 1529 [2011]). Here, however, the District Attorney did provide the requisite consent,thus paving the way for County Court to resentence defendant in conformity with Penal Law§ 70.85. Under these circumstances, where defendant did not receive the period ofpostrelease supervision that should have been—but never was—imposed, wediscern no constitutional infirmity and, hence, "defendant [is] not entitled to vacatur of his plea"(People v Williams, 82 AD3d1576, 1578 [2011], lv denied 17 NY3d 810 [2011]; cf. People v Verhow, 83AD3d at 1528-1529).
Finally, based upon our review of the record as a whole, we find no merit to defendant'sclaim of ineffective assistance of counsel (see generally People v Wright, 85 AD3d 1316, 1317 [2011]).Defendant's remaining contentions, to the extent not specifically addressed, have been examinedand found to be lacking in merit.
Peters, J.P., Rose, McCarthy and Garry, JJ., concur. Ordered that the judgment, order andamended order are affirmed.
Footnote *: County Court's amended August10, 2011 order reflects that these motions were denied on the merits as to defendant's ineffectiveassistance of counsel claim and, as to the Catu issue, were barred due to defendant'sfailure to raise that claim on a direct appeal.