| People v Newman |
| 2012 NY Slip Op 07151 [99 AD3d 1107] |
| October 25, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v John H.Newman Jr., Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joshua S. Shapiro of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered December 17, 2009, (1) convicting defendant upon his plea of guilty of the crimes ofrape in the third degree (two counts) and criminal sexual act in the third degree and of violatingthe terms of his probation, and (2) which revoked defendant's probation and imposed a sentenceof imprisonment.
While on probation, defendant was charged by indictment with two counts of rape in thethird degree and one count of criminal sexual act in the third degree. Defendant pleaded guilty tothe indictment and the probation violation the day before his trial was set to commence. Thefollowing day, County Court engaged in further colloquy with defendant to advise him that therewould be a term of postrelease supervision included in any sentence imposed. Defendantaffirmed his understanding of postrelease supervision and expressed his continued desire to pleadguilty. County Court thereafter sentenced defendant to concurrent terms of 2½ years inprison plus 10 years of postrelease supervision on each of the indicted charges, as well as aconsecutive term of three years in prison plus three years of postrelease supervision on theprobation violation. Defendant now appeals and we affirm.
We reject defendant's contention that he was not afforded an opportunity to withdraw hisplea after County Court initially failed to inform him of the period of postrelease supervision.[*2]Under the facts of this case, we find that County Courtsatisfied its obligation to ensure that defendant had a full understanding of the consequences ofthe plea, including postrelease supervision, and that defendant's plea was knowing and voluntary(see People v Catu, 4 NY3d242, 244-245 [2005]; People vCullen, 62 AD3d 1155, 1156-1157 [2009], lv denied 13 NY3d 795 [2009]; People v Brunelle, 47 AD3d 1067,1067 [2008], lv denied 11 NY3d 786 [2008]; compare People v Thomas, 68 AD3d 1445, 1446-1447 [2009]).Defendant's remaining contention, that he was denied the effective assistance of counsel, is notpreserved for our review as the record before us fails to indicate that defendant moved towithdraw his plea or vacate the judgment of conviction (see People v Cassara, 88 AD3d 1069, 1069 [2011], lvdenied 18 NY3d 956 [2012]; Peoplev Mercer, 81 AD3d 1159, 1159 [2011], lv denied 19 NY3d 999 [2012]; People v Bolden, 78 AD3d 1419,1420 [2010], lv denied 16 NY3d 828 [2011]).
Rose, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.