| People v Brown |
| 2013 NY Slip Op 04849 [107 AD3d 1303] |
| June 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vAnthony Brown, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered December 12, 2011, convicting defendant upon his plea of guiltyof the crime of criminal sale of a controlled substance in the third degree.
Defendant pleaded guilty to criminal sale of a controlled substance in the thirddegree in full satisfaction of a six-count indictment and waived his right to appeal.Pursuant to the plea agreement, defendant was to be sentenced, as a second felonyoffender, to fours years in prison, to be followed by an undisclosed period of postreleasesupervision. At sentencing, County Court imposed the agreed-upon term ofimprisonment, along with three years of postrelease supervision. Defendant now appeals,arguing that his plea should be vacated as it was not knowing, voluntary and intelligentdue to the fact that he was not advised of the specific length of mandatory postreleasesupervision prior to sentencing.
We reverse. Initially, as defendant's challenge relates to the voluntariness of his plea,it survives any appeal waiver (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Grimm, 69 AD3d1231, 1231 [2010], lv denied 14 NY3d 888 [2010]). Further, defendant wasnot required to preserve this issue in a postallocution motion (see People v Boyd, 12 NY3d390, 393 [2009]; People vLouree, 8 NY3d 541, 545-546 [2007]; People v Rucker, 67 AD3d 1126, 1127 n [2009]). Turningto the merits, "[a] defendant pleading guilty to a determinate sentence must be [*2]aware of the postrelease supervision component of thatsentence in order to knowingly, voluntarily and intelligently choose among alternativecourses of action" (People vCatu, 4 NY3d 242, 245 [2005]; accord People v Wade, 86 AD3d 713, 714 [2011], lvdenied 17 NY3d 823 [2011]). Moreover, "[i]n order to satisfy the demands of dueprocess, a defendant must be aware of not only the existence of the postreleasesupervision component to a sentence, but also the promised or potential duration of thatcomponent if a negotiated sentence is a part of the plea agreement" (People vGrimm, 69 AD3d at 1232). Here, the record reflects, as the People concede, thatwhile the plea agreement included a specific negotiated sentence and a mention ofpostrelease supervision, defendant was never advised by the court of either a promisedspecific duration or the potential range of the mandatory postrelease supervisioncomponent prior to sentencing. Accordingly, his decision to plead guilty was not aknowing, voluntary and intelligent one and, therefore, the judgment of conviction mustbe reversed and the plea vacated (see People v Meyers, 73 AD3d 1231, 1231 [2010];People v Grimm, 69 AD3d at 1232).
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isreversed, on the law, plea vacated, and matter remitted to the County Court ofSchenectady County for further proceedings not inconsistent with this Court's decision.