| People v Colon |
| 2012 NY Slip Op 08908 [101 AD3d 1635] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael A. Colon,Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered October 3, 2008. The judgment convicted defendant, upon his plea of guilty, of criminalsexual act in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law, theplea is vacated, and the matter is remitted to Supreme Court, Monroe County, for further proceedingson the indictment.
Memorandum: On appeal from a judgment convicting him upon his guilty plea of criminal sexual actin the first degree (Penal Law § 130.50 [3]), defendant contends that reversal is requiredbecause Supreme Court failed to advise him at the time of his plea that his sentence would include aperiod of postrelease supervision (PRS). We agree.
Defendant was indicted on six felony offenses, including two counts of criminal sexual act in the firstdegree, a class B felony. Defendant entered a plea of not guilty to all counts of the indictment. On theday the case was scheduled for a pretrial hearing, the court, following a conference in chambers, placedthe People's plea offer on the record. According to the court, the offer required defendant to pleadguilty to a class B felony in satisfaction of the indictment on the condition that he receive a sentence ofno less than 20 years in prison. The prosecutor confirmed that this accurately conveyed the People'soffer, but added that he was also asking for an order of protection in favor of the victims. The courtthen addressed defendant directly, stating that, although the prosecutor was asking for a sentence ofbetween 20 and 25 years, the court "would consider the sentence of 20 years in the New York StateDepartment of Corrections." Neither the court nor the prosecutor stated that the offer required a termof PRS. Defense counsel requested an adjournment to permit his client to consider the offer. At thenext scheduled court appearance, the court again placed the People's plea offer on the record. Again,no mention was made of PRS. Defendant rejected the offer.
On the day that defendant's jury trial was scheduled to commence, the prosecutor reiterated thePeople's plea offer in slightly different terms, stating that defendant would be required to plead guilty toone class B violent felony offense in satisfaction of all charges, in return for a sentence promise of atleast 20 but not more than 25 years' imprisonment and a [*2]mandatoryperiod of five years of PRS. The court informed defendant that it "would strongly consider the 20 yearsrather than the 25 years" if defendant pleaded guilty, but the court did not mention that its sentencecommitment included a mandatory period of PRS, or that the court would impose a period of PRS aspart of its sentence.
Following a one-hour recess, the purpose of which was to give defendant time to discuss the offerwith his attorney, the court reiterated the terms of the plea offer and sentence promise, but again did notmention PRS. Defense counsel then stated that defendant wished to accept the offer provided thatdefendant could enter an Alford plea, which neither the People nor the court opposed. Thecourt then began a plea colloquy with defendant, reviewing the rights he would be forfeiting by pleadingguilty.
During the colloquy, the court asked defendant, "Has anybody promised you anything other thanwhat we placed on the record all morning, the first time around 9:30 and right now around 25 after11:00; anybody promised you anything else?" Defendant answered "no." Later in the colloquy the courtasked defendant, "Do you understand that I made a promise to you that upon your guilty plea I'm goingto consider the sentence range from 20 to 25, but right now my position is because of everything Iheard, I'm leaning toward 20." Defendant answered "yes." The court did not mention any period ofPRS, nor did the prosecutor or defense counsel. The court subsequently accepted defendant's guiltyplea to one count of criminal sexual act in the first degree, and at sentencing imposed a determinateterm of imprisonment of 20 years plus five years of PRS. This appeal ensued.
As the Court of Appeals has repeatedly advised, "[a] trial court has the constitutional duty toadvise a defendant of the direct consequences of a guilty plea, including any period of postreleasesupervision (PRS) that will be imposed as part of the sentence" (People v Cornell, 16 NY3d 801, 802 [2011], citing People v Catu, 4 NY3d 242, 244-245[2005]). "Although the court is not required to engage in any particular litany when allocuting thedefendant, due process requires that the record must be clear that the plea represents a voluntary andintelligent choice among the alternative courses of action open to the defendant" (id. [internalquotation marks omitted]). "[T]he failure of a court to advise of postrelease supervision requiresreversal of the conviction" (id.). "Further, 'where a trial judge does not fulfill the obligation toadvise a defendant of postrelease supervision during the plea allocution, the defendant may challengethe plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of apostallocution motion' " (id., quoting People v Louree, 8 NY3d 541, 545-546 [2007]).
We conclude that the record does not make clear, as required by Cornell andCatu, that defendant was aware when he pleaded guilty that the terms of the court's promisedsentence included a period of PRS. Although the prosecutor at one point described a period of PRS asmandatory, the court did not state that it would impose a period of PRS as part of its sentence; rather,the court repeated several times its promise to sentence defendant to no more than 25, and as few as20, years' imprisonment. It is also true, as the People note, that the attorney who represented defendantat the time of the plea subsequently testified at a later hearing that he advised defendant that there wouldbe a mandatory period of 5 years' PRS if he were convicted after trial. That attorney did not testify,however, that he advised defendant that he would be sentenced to PRS if he pleaded guilty or that thecourt's sentence promise included PRS. Under the circumstances, it cannot be said that defendantnecessarily was aware that he would be sentenced to a period of PRS if he pleaded guilty. Indeed,defendant may reasonably have believed that the court's repeated failure to mention a period of PRSindicated that it was not a part of the sentence promised (see People v Cornell, 75 AD3d 1157, 1158 [2010], affd 16NY3d 801 [2011]). In any event, the fact that either the prosecutor or defense counsel mentioned aperiod of PRS earlier in the plea bargaining process "does not excuse the court from fulfilling itsconstitutional [*3]duty" (id.).
In sum, because the record here is not clear with respect to defendant's knowledge of the terms ofhis sentence, the guilty plea must be vacated even in the absence of a postallocution motion to withdrawthe plea or to vacate the judgment of conviction specifically directed at the Catu error (seeCornell, 16 NY3d at 802). We do not agree with the People that the "rationale for dispensing withthe preservation requirement is not presently applicable" because defendant was advised by the courtprior to the imposition of sentence that he would be subjected to a term of PRS (People v Murray, 15 NY3d 725, 727[2010]). In any event, even assuming, arguendo, that the preservation requirement applies, we wouldnonetheless exercise our power to address defendant's challenge to the voluntariness of his plea as amatter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
We have reviewed defendant's remaining contentions and conclude that they lack merit.Present—Smith, J.P., Carni, Lindley, Sconiers and Whalen, JJ.